2025 (4) TMI 1309 - HC - Indian Laws

Smuggling of Ganja of commercial quantity - contraband item - offences punishable under Section 8(c) 20(b)(ii)(c) 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 - HELD THAT - There is no dispute that commercial quantity in relation to NDPS Act for ganja means any quantity greater than 20 kg. The Section 2(iii) (b) and (c) defines Ganja as the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated and any mixture with or without any neutral material of any of the above forms of cannabis or any drink prepared therefrom. There is nothing on record to prima facie show that before carrying weight of the seized plant of ganja the investigating officer had segregated the seeds or the other parts of the plant in order to ascertain the exact quantity of ganja. In fact none of the paper mentions that the said contraband articles which were seized includes the flowering or fruiting tops of cannabis plant. This fact becomes further clear from the panchanama also - on perusal of the material on record shows that what was seized was plant i.e. leaves seeds stems and stalks and without separating the same the ganja was weighed. As the seized material was not weighed and after separating the leaves and the other parts and moreover it is not along with the flowering or fruiting tops. Therefore it is difficult to ascertain whether quantity can be said to be commercial. After perusal of the investigating papers prima facie the material complied with the chargesheet it is difficult to accept that the alleged prohibited substance is within the definition of ganja under the NDPS Act. Since the only flowering or fruiting tops of cannabis plant are classified as ganja in absence of the said substance being seized from the applicant prima facie involvement of the applicant is difficult to hold. Moreover there is inordinate delay in conducting the trial and therefore the right of the accused of speedy trial is affected. Recently the Hon ble Apex Court in the case of Ankur Chaudhary Vs. State of Madhya Pradesh 2024 (5) TMI 1463 - SC ORDER by referring the earlier decisions held that inordinate delay in trial is affecting the right of the accused of a speedy trial which is violation of article 21 of the Constitution of India. Conclusion - There is nothing on record to prima facie show that before carrying weight of the seized plant of ganja the investigating officer had segregated the seeds or the other parts of the plant in order to ascertain the exact quantity of ganja. In absence of the said substance flowering or fruiting tops being seized from the applicant prima facie involvement of the applicant is difficult to hold. The applicant- Mohammad Jakir Nawab Ali be released on bail subject to fulfilment of conditions imposed - bail application allowed.

Summary

The core legal questions considered by the Court in this matter include:

(a) Whether the seized contraband qualifies as 'ganja' within the meaning of Section 2(iii)(b) and (c) of the NDPS Act, 1985, given the nature of the seized plant parts (leaves, seeds, stems, stalks) and the absence of flowering or fruiting tops;

(b) Whether the quantity of the seized contraband can be considered a commercial quantity under the NDPS Act, considering the definition and measurement of 'ganja';

(c) Whether the mandatory procedural requirements under the NDPS Act, including segregation and weighing of the seized material, were complied with;

(d) Whether the applicant's right to a speedy trial under Article 21 of the Constitution has been violated due to inordinate delay in framing charges and commencing trial;

(e) Whether the applicant is entitled to bail under Section 439 of the Code of Criminal Procedure read with Section 37 of the NDPS Act, considering the nature of the offence and the evidence on record.

Issue-wise Detailed Analysis:

1. Definition and Nature of the Seized Substance as 'Ganja'

The legal framework rests primarily on Section 2(iii)(b) and (c) of the NDPS Act, which defines 'ganja' as the flowering or fruiting tops of the cannabis plant, excluding seeds and leaves when not accompanied by the tops. The statutory definition is restrictive and excludes seeds, leaves, stems, and stalks when not accompanied by the flowering or fruiting tops.

The Court examined the FIR, panchnama, inventory certificate, and investigation papers, which revealed that the seized material consisted of leaves, seeds, stems, and stalks, with no mention or evidence of flowering or fruiting tops. The weighing of the contraband was done collectively without segregation of these parts as mandated. This procedural lapse is critical because the commercial quantity threshold applies only to 'ganja' as defined, i.e., flowering or fruiting tops.

The Court noted the absence of any document or report indicating that the seized plant parts were segregated before weighing or that flowering or fruiting tops were part of the seizure. The Chemical Analyser's report, relied upon by the prosecution, was found insufficient to establish that the contraband was 'ganja' within the statutory definition.

Consequently, the Court held that prima facie, the seized material does not satisfy the statutory definition of 'ganja', thereby casting doubt on the applicability of the charges under the NDPS Act.

2. Commercial Quantity and Measurement of Contraband

Under the NDPS Act, commercial quantity for 'ganja' is defined as any quantity exceeding 20 kilograms. However, this threshold applies strictly to the flowering or fruiting tops of the cannabis plant. Since the seized material was not segregated and weighed accordingly, and the seized quantity included non-qualifying parts such as seeds and leaves, the Court found it difficult to ascertain whether the quantity of 'ganja' seized was indeed commercial.

This failure to segregate and weigh the relevant parts undermines the prosecution's case that the applicant was in possession of commercial quantity of 'ganja'. The Court emphasized that the burden lies on the prosecution to establish the quantity and nature of the contraband beyond doubt.

3. Compliance with Mandatory Provisions under the NDPS Act

The Court considered whether the mandatory procedural safeguards under the NDPS Act, including proper segregation, sampling, and documentation, were followed. It found that the investigation and seizure processes did not comply with these requirements, particularly the failure to separate the flowering or fruiting tops from other parts of the plant before weighing.

This non-compliance affects the validity of the seizure and the subsequent charge sheet, weakening the prosecution's case. The Court underscored the importance of strict adherence to procedural safeguards in NDPS cases to prevent wrongful prosecution.

4. Right to Speedy Trial

The applicant, who is HIV positive with deteriorating health, was arrested on 07/12/2021. The Court noted that there was an inordinate delay in framing charges and commencing the trial, with no substantial progress made. This delay infringes upon the applicant's constitutional right to a speedy trial under Article 21.

The Court referred to recent authoritative pronouncements affirming that inordinate delay in trial constitutes a violation of the right to life and personal liberty. The delay in the present case was held to be prejudicial to the applicant's rights and a relevant factor in considering bail.

5. Bail under Section 439 Cr.P.C. and Section 37 NDPS Act

Section 37 of the NDPS Act restricts bail in cases involving commercial quantities unless there are reasonable grounds to believe the accused is not guilty or is unlikely to commit such offence while on bail. The Court interpreted 'reasonable ground' as requiring more than a prima facie case, demanding substantial probable cause for believing the accused's innocence.

Given the doubts regarding the nature of the seized material, the failure to meet procedural requirements, and the inability to establish commercial quantity, the Court found reasonable grounds to believe the applicant may not be guilty of the offence charged.

Additionally, the applicant's health condition and the delay in trial further supported the grant of bail. The Court imposed conditions including executing a PR bond, regular reporting to the police, prohibition on inducement or threat to witnesses, and refraining from similar offences, with a provision for cancellation of bail on violation.

Treatment of Competing Arguments

The prosecution emphasized the Chemical Analyser's report confirming the contraband as 'ganja' and compliance with mandatory provisions, urging rejection of bail. The Court, however, found the report insufficient in the absence of segregation and weighing of flowering or fruiting tops. The prosecution's reliance on the CA report without corresponding procedural compliance was held inadequate to sustain the charges at the bail stage.

The applicant's argument on the definition of 'ganja' and procedural lapses was accepted as prima facie valid, and the right to speedy trial was a compelling consideration favoring bail.

Significant Holdings:

"The definition of term 'ganja' defines and clarifies that 'ganja' is the flowering or fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops."

"There is nothing on record to prima facie show that before carrying weight of the seized plant of ganja, the investigating officer had segregated the seeds or the other parts of the plant in order to ascertain the exact quantity of ganja."

"In absence of the said substance [flowering or fruiting tops] being seized from the applicant, prima facie involvement of the applicant is difficult to hold."

"Inordinate delay in trial is affecting the right of the accused of a speedy trial, which is violation of Article 21 of the Constitution of India."

"The expression reasonable ground means something more than prima facie ground it contemplates substantial probable cause for believing that the accused is not guilty of the offence."

The Court concluded that the applicant is entitled to bail subject to specified conditions, emphasizing that the observations made are only for the purpose of bail and shall not influence the trial court's proceedings. The judgment establishes the principle that strict compliance with the statutory definition and procedural safeguards under the NDPS Act is indispensable, especially in cases involving commercial quantity, and that violation of the right to speedy trial is a significant ground for bail.