High Court
Legal Reasoning
1915 BA.2129.2023 n BA.2130.2023.odtThe order dated 4th January, 2024 is corrected as per the order ofspeaking to the minutes dated 8th January, 2024.IN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.915 BAIL APPLICATION NO. 2129 OF 2023SUKHLAL DHENA JADHAVVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Bharat S. Doifode.APP for Respondent/State : Mr. Satish A. Gaikwad....ANDBAIL APPLICATION NO. 2130 OF 2023BHURLAL DHENA JADHAVVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Y. L. Bidve, h/f Mr. Bharat S. Doifode.APP for Respondent/State : Mr. Satish A. Gaikwad....CORAM :SANJAY A. DESHMUKH, J.DATE :04th January, 2024. P.C.:1These are applications, under Section 439 of the Code ofCriminal Procedure, 1973, for grant of regular bail in connection withCrime No.156 of 2023, registered with Fardapur Police Station, DistrictAurangabad, for the offences punishable under Sections 20(b)(ii) and20(b)IIA of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short “NDPS Act”).
Legal Reasoning
2915 BA.2129.2023 n BA.2130.2023.odt 2It is alleged that the informant alongwith official staff,Tahsildar and Panch witnesses went to the agriculture land ofaccused / Sukhlal at village Tatavi, Taluka Soygaon, DistrictAurangabad. They found 585 big and small Ganja trees, which werehaving leaves and flowers, in the agriculture land bearing Block No.38.All these trees were seized under seizure Panchanama. Total quantitywas 273 KG. It was seized under seizure Panchanama and reportwas lodged by AIS D. S. Jadhav. 3The learned counsel for applicants submitted that theinvestigating officer though seized Ganja trees, it is not Ganja asdefined under sub-clause iii (b) of Section 2 of the NDPS Act. Theroods of the Ganja trees were not removed. Therefore, the quantity ofthat seized articles exceeds 20 Kg. The learned counsel for applicantsfurther submitted that the applicants have no criminal antecedents.They have roots in the society. Both the applicants are old agedpersons. They will not flee away from trial. He lastly prayed forgranting bail to the applicants. 4The learned APP for the State strongly objected boththese applications. The learned APP pointed out the inventorycertificate issued by J.M.F.C., Soygaon dated 13th October, 2023. Hesubmitted that charge-sheet is not yet filed. He lastly prayed to rejectthe applications. 3915 BA.2129.2023 n BA.2130.2023.odt 5Perused the papers of investigation. The seizurePanchanama of Ganja trees does not disclose that roots wereremoved and thereafter, flowering or fruiting tops of the cannabisplants were seized as defined in sub-clause iii (b) of Section 2 ofNDPS Act. 6The learned counsel for applicants is relying upon theorder passed by this Court at Principal Seat in Bail ApplicationNo.1296 of 2022 (Ibrahim Khwaja Miya Sayyed @ Raju Vs. The Stateof Maharashtra) dated 17th March, 2023. In the said order, this Court inparagraph Nos.4 and 5 observed as under:-“4.Learned counsel for the Applicant states that apartfrom the flowering buds, the Investigating Officer has alsoattached stalks, leaves and seeds. She submits that leaves,seeds and stalks cannot be considered as 'Ganja' unlessaccompanied by the tops. She has relied upon the decisionsof learned Single Judge of this Court in Rahul BhimraoPawar vs. The State of Maharashtra, (Bail ApplicationNo.2977 of 2021 ), Kunal Kadu vs. Union of India (ABANo.2173 of 2022), Hari Mahadu Walse vs. The State ofMaharashtra (Bail Application No.2299 of 2019) and AmitShankar Devmare vs. The State of Maharashtra (BailApplication No.4203 of 2021).5.Learned counsel for the Applicant contends that theactual flowering or fruiting tops were not separately weighedand this raises a doubt whether the 'Ganja' seized from the 4915 BA.2129.2023 n BA.2130.2023.odtApplicant was of commercial quantity. She further submitsthat the police had not drawn sample from each of the travelbags but had mixed the substance from both the bags andthereafter drawn the sample, which was sent to CFSL forexamination. She has relied upon the decision of the DelhiHigh Court in Ram Bharose vs. State (Govt. of NCT of Delhi)in Bail Application No.1623 of 2022 to substantiate hercontention that the samples, which were sent to CFSL werenot representative sample and that mixing of the contentscontained in both the travel bags before drawing from thebags looses the sanctity of the entire process.”7The learned APP is relying upon the decision of theHonourable Supreme Court in case of Hira Sing and another Vs.Union of India and another, 2020 AIR (SC) 3255, in which theHonourable Supreme Court in paragraph No.10 held as under:-“10.In view of the above and for the reasons stated above,Reference is answered as under:(I).The decision of this Court in the case of E. Micheal Raj(Supra) taking the view that in the mixture of narcotic drugsor psychotropic substance with one or more neutralsubstance(s), the quantity of the neutral substance(s) is notto be taken into consideration while determining the smallquantity or commercial quantity of a narcotic drug orpsychotropic substance and only the actual content by weightof the offending narcotic drug which is relevant for thepurpose of determining whether it would constitute smallquantity or commercial quantity, is not a good law; 5915 BA.2129.2023 n BA.2130.2023.odt(II).In case of seizure of mixture of Narcotic Drugs orPsychotropic Substances with one or more neutralsubstance(s), the quantity of neutral substance(s) is not to beexcluded and to be taken into consideration along with actualcontent by weight of the offending drug, while determiningthe “small or commercial quantity” of the Narcotic Drugs orPsychotropic Substances;(III).Section 21 of the NDPS Act is not stand-aloneprovision and must be construed along with other provisionsin the statute including provisions in the NDPS Act includingNotification No.S.O.2942(E) dated 18.11.2009 andNotification S.O 1055(E) dated 19.10.2001;(IV).Challenge to Notification dated 18.11.2009 adding“Note 4” to the Notification dated 19.10.2001, fails and it isobserved and held that the same is not ultra vires to theScheme and the relevant provisions of the NDPS Act.Consequently, writ petitions and Civil Appeal No. 5218/2017challenging the aforesaid notification stand dismissed.”8Nobody will dispute the ratio laid down in the aboveauthority. But the facts of the case are always decisive. 9Perused the papers of investigation. If the papers ofinvestigation are considered, particularly seizure Panchanama of thearticles and report lodged by the police officer, the ingredients of Ganjaas defined under sub-clause iii (b) of Section 2 of the NDPS Act, arenot establishing. On the contrary, the roots of Ganja trees with its 6915 BA.2129.2023 n BA.2130.2023.odtstems are also seized. Therefore, weight is enhanced and it becomescommercial quantity. It is not Ganja as discussed above. In such factsituation, considering the fact that the applicants have no criminalantecedents, both these applications deserve to be allowed on certainconditions. Hence, following order:- O R D E RI.Both these applications are allowed.II.Both the applicants in connection with Crime No.156 of 2023,registered with Fardapur Police Station, District Aurangabad, forthe offences punishable under Sections 20(b)(ii) and 20(b)IIA ofthe Narcotic Drugs and Psychotropic Substances Act, bereleased on bail on furnishing personal bond of Rs.50,000/-each with surety of the like amount on following conditions:- a)The applicants shall not pressurize the witnesses.b)The applicants shall not tamper with the prosecutionevidence in any manner. [ SANJAY A. DESHMUKH, J. ] nga