2024 (10) TMI 315 - HC - Indian Laws

Seeking grant of regular bail - Illegal possession of Ganja - offence u/s 20/29 NDPS Act - whether the recovered material falls within the definition of Ganja ? - HELD THAT - The intention of the Legislature appears to be clear that in case of Ganja, if it is merely Category A i.e. a homogenous mixture of flowering buds and fruiting tops, then the same would fall within the meaning of Cannabis , however, if it is merely Category B i.e. a homogenous mixture of seeds/leaves/stalks without the fruiting tops and buds, then the same would not attract the provisions of the NDPS Act. From the framework of the entire NDPS Act and a reading of S. 2 (iii)(b), it emerges that if the material seized is a heterogenous mixture/Category C, constituting of Category A mixed with Category B, the placebo material such as stalks/leaves/stems (Category B) would not constitute an actual part of the drug and only the actual content and weight of the narcotic drug (Category A) would be relevant for determining whether it would constitute small quantity or commercial quantity. Evidently, the present case is of a recovery falling within Category C. The Chargesheet records that when the Petitioner/Ravina was apprehended, blue coloured plastic polythene bag was recovered from her which contained grass-like flowery-leafy material along with its stems, which appeared to be Ganja and was seized vide the seizure memo. On weighing, the recovered Ganja on the electronic weighing machine, the total weight of the quantity recovered, was about 24.145 Kg - It has been consistently held that if there is a prima facie discrepancy in what was seized and what was analysed and weighed and there are reasonable grounds to believe that the petitioner is not guilty of offences dealing in commercial quantity. Consequently, the rigors of Section 37 of the NDPS Act, 1985 for grant of regular bail, would not become applicable. Admittedly, the petitioner has not been involved in any other crime previously and has clean antecedents. Moreover, there is nothing to show that the petitioner is likely to tamper with the evidence or influence the witnesses. Considering the background, it can also not be said that she is a flight risk. Considering the nature of allegations and the petitioner s clean antecedents, coupled with the fact that the trial is still ongoing, the present petition is allowed and the petitioner is admitted to regular bail registered under Section 29 read with Section 20(B)(ii)(c) of NDPS Act, 1985 at Police Station Badarpur, Delhi, upon his furnishing a personal bond in the sum of Rs. 25,000/- and one surety of the like amount to the satisfaction of the learned Trial Court, and further subject to fulfilment of conditions imposed - bail application allowed.

Summary

Issues:
Regular bail under Section 439 of CrPC in FIR under NDPS Act, 1985 involving alleged possession of Ganja; Interpretation of the definition of Ganja under NDPS Act; Discrepancy in the quantity of contraband material seized; Application of Section 37 of NDPS Act for grant of bail; Precedents cited in support of the arguments; Opposing arguments by the State regarding gravity of the offense and likelihood of the petitioner committing the same offense if granted bail.

The judgment pertains to a bail petition filed under Section 439 of the Code of Criminal Procedure seeking regular bail in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was apprehended along with a co-accused, and a significant quantity of Ganja was recovered from their possession. The petitioner argued that the weight of the seized material, which included leaves and stalks, should be excluded to determine the actual quantity of Ganja. The prosecution contended that the recovery exceeded the commercial quantity, invoking Section 37 of the NDPS Act. The court analyzed the definition of Ganja under the Act, emphasizing the exclusion of seeds, leaves, and stalks unless accompanied by flowering tops. It discussed the categorization of homogenous and heterogeneous mixtures and the exclusion of non-drug components while calculating the actual quantity of the narcotic substance.

The court referred to previous judgments to support the petitioner's argument that discrepancies in the weight of seized material could benefit the bail applicant, especially when there are doubts about the actual quantity of contraband recovered. It highlighted the importance of excluding non-drug components, such as seeds and stems, while determining the weight of the narcotic substance. The court also considered the petitioner's clean antecedents, lack of prior criminal involvement, and the absence of evidence suggesting tampering or flight risk. Ultimately, the court granted regular bail to the petitioner in the FIR under NDPS Act upon furnishing a personal bond and surety, subject to specific conditions to ensure compliance and prevent further criminal activities.

The judgment provides a detailed analysis of the legal principles governing bail applications in NDPS cases, focusing on the interpretation of the definition of Ganja, exclusion of non-drug components in weight calculations, and the application of precedents to determine the petitioner's eligibility for bail. It underscores the importance of considering discrepancies in the quantity of contraband material seized and the petitioner's background while making bail decisions. The court's decision to grant bail reflects a balanced approach considering both legal principles and individual circumstances.