State Of Rajasthan, Through PP vs For Respondent(s)

: Mr. Nirmal Kumar Sharma, Adv. For Respondent(s) : Mr. Manvendra Singh, PP HON'BLE MR. JUSTICE PRAVEER BHATNAGAR 09/05/2025 Order

1. The instant 2nd bail application has been filed under Section 483 of B.N.S.S. on behalf of accused-petitioner. The accused- petitioner has been arrested in connection with FIR No.61/2023, registered at Police Station Kota, District GRP, Ajmer, for the offence(s) under Sections 8/20 of the N.D.P.S. Act.

2. Learned counsel for the petitioner submits that the first bail application of the petitioner was dismissed by this Court vide order dated 22.05.2024. Thereafter, the Co-ordinate Bench enlarged the other similarly placed co-accused Hansraj on bail, considering the fact that the contraband article, i.e., “Ganja”, contains stem leaves. It is also contended that in the recovery memo, the Police stated that the contraband articles recovered from the petitioner and the other co-accused contained stem and leaves of the cannabis plant. It is further argued that as per Section 2(i)(b) of [2025:RJ-JP:19581] (2 of 4) [CRLMB-5541/2025] the N.D.P.S. Act, ganja is defined as the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves. The recovered contraband articles does not fall within the ambit of Section 2(i)(b) of the N.D.P.S. Act. It is further contended by learned counsel for the petitioner that in the FSL report, it has not been examined whether Tetrahydrocannabinol (THC) and Cannabidiol (CBD) were present in the samples sent to the laboratory. It is contended that according to Tiwari’s medical jurists in forensic medicine and toxicology, in the case of Ganja, the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol is about 25. Therefore, in the absence of a specific report regarding the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol, it cannot be said that the contraband recovered from the petitioner’s possession was “Ganja”. Learned counsel for the petitioner rests his arguments on the judgment passed by the M.P. High Court in the matter of Dayaram Singh & Anr. vs. State of Madhya Pradesh, Miscellaneous Criminal Case No. 7965/2011, dated 04.03.2024. He also places reliance upon the judgment of Kunal Dattu Kadu vs. Union of India, dated 29.08.2022, in which the samples sent to the FSL contained a soft greenish heterogeneous mixture of flowering and fruiting tops, bits of leaves, stems, and stalks along with seeds of the plant. The petitioner’s case is squarely covered by the judgment in Kunal Dattu Kadu vs. Union of India, Anticipatory Bail Application No. 2173/2022, passed by the High Court of Judicature at Bombay, dated 29.09.2022. The petitioner has been behind bars since 07.03.2023, and only 3 witnesses have been recorded out of the 14 cited witnesses. Therefore, considering the [2025:RJ-JP:19581] (3 of 4) [CRLMB-5541/2025] long incarceration and on the grounds of parity and other legal points, the bail application of the accused-petitioner may be allowed.

3. Learned Public Prosecutor has vehemently opposed the grant of bail. It is contended that in the FSL report, the samples contained leaves, stems, stalks, and seeds of the cannabis plant, and after analysis, the contraband articles were found to be “Ganja”. The analysis report of the FSL cannot be disbelieved. It is also contended that in the definition under Section 2(i)(b) of the N.D.P.S. Act, it is nowhere mentioned that the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol substances should be about 25. Therefore, in the absence of any statutory provisions, the case relied upon by the learned counsel for the petitioner is not applicable, and the petitioner cannot be enlarged on bail. It is further argued that in the case of Kunal Dattu Kadu vs. Union of India (supra), the samples contained a heterogeneous mixture of flowering and fruiting tops, fragments of leaves, stems, and stalks along with seeds. In the FSL report received in the present case, the samples did not contain any part of leaves, stalks, etc., otherwise, it would have been mentioned in the FSL report. Therefore, considering the fact that the recovered quantity of ganja from the petitioner’s possession is of commercial quantity and the provisions of Section 37 of the N.D.P.S. Act are mandatory, the second bail application of the accused-petitioner may be dismissed.

5. Heard and perused the material available on record. Though the Co-ordinate Bench has enlarged the other co- accused on bail on the grounds that the contraband articles [2025:RJ-JP:19581] (4 of 4) [CRLMB-5541/2025] contained leaves, stems, and other parts, however, in the FSL report, it has been clearly mentioned that mark A(i), C(i), D(i), and F(i) contained green-coloured plant matter consisting of flowering and fruiting tops and their segments. If the samples had contained stems, leaves, etc., then the FSL report ought to have included that fact.

6. As per the definition given in Section 2(i)(b) of the N.D.P.S. Act, “Ganja”, is defined as the flowering and fruiting parts of the cannabis plant, excluding leaves, seeds, and stems, and nowhere in the NDPS Act is it defined that the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol should be about 25%. Therefore, after going through the entire record, this Court is of the view that prima facie the substance (ganja) recovered from the petitioner’s possession is “Ganja”, the rider encapsulated in Section 37 of the N.D.P.S. Act is mandatory. There is no reason to presume that the petitioner was not involved in transporting the commercial quantity of “Ganja”. The Hon’ble Apex Court, in the case of Narcotics Control Bureau vs. Mohit Agarwal, 2022 SCC OnLine SC 891, has opined that mere delay in trial cannot be a ground to dilute the conditions enshrined under Section 37 of the N.D.P.S. Act. Therefore, considering the above facts, this Court is not inclined to enlarge the accused- petitioner on bail.

7. Accordingly, the instant second bail application of the accused-petitioner is hereby dismissed. Ashwani Kr Srivastava /-2 (PRAVEER BHATNAGAR),J