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TMI Blog2024 (10) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory 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 backg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of contraband material. Thus, without the stems, the actual quantity of Ganja would only be mere 3.465 Kg., i.e. much lesser than the commercial quantity of 20 kgs. 6. Even the Forensic Report dated 01.07.02023, reflects that the weighed sample which is in small quantity also includes the weight of leaves, stalks/stems. Similarly, the FIR dated 19/4/2023 and the seizure Memo establish that along with the alleged flowering buds of cannabis/ 'ganja', the leaves and stalks/ stems have also been seized by the I.O. only to falsely implicate the Petitioner and make out a case of recovery of commercial quantity, from her. The petitioner has placed reliance on the decision in Ibrahim Khwaja Miya Sayyed Vs State of Maharashtra 2023 SCC Online Bom 2873 wherein it was observed that while granting bail, the weight of the leaves and stems has to be excluded while weighing the alleged seized quantity of the contraband material. 7. The petitioner has submitted that she is a law abiding citizen who has clean antecedents and she belongs to a respectable family with deep roots in the society. Furthermore, all the witnesses are police officials and there is not even single publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered, which was placed in white colour plastic sacks, marked as A B and sent for forensic examination. 14. Though it is not in dispute that Ganja was recovered, the petitioner has taken a specific plea that the recovered quantity of 23.456 kg Ganja included the leaves and stalks/ stems which does not fall in the definition of contraband material and the actual quantity of Ganja would only be mere 3.465 Kg., i.e. much lesser than the commercial quantity of 20 kgs. 15. At this juncture, it becomes apposite to analyse whether the recovered material falls within the definition of Ganja ? 16. The definition of Ganja is provided under section 2 (iii)(b) of the NDPS Acts which reads as under :- (b) ganja, that is, 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; 17. From the definition, it is evident that flowering buds and fruiting tops of the cannabis plant would be covered under section 2 (iii)(b) but merely leaves /seeds and stalks would not form a part of the definition of Ganja unless accompanied by the flowering and fruiting tops. 18. This can be represented accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1' and 'SB-1' were found to be Ganja . 26. Pertinently, the recovered quantity of about 24.145 Kg was just 4.145 kgs more than the commercial quantity. Since, the entire substance including stems/stalks and dried leaves were weighed together without quantifying the weight of the flowering or fruiting tops, the quantity of 'Ganja' seized from the Applicant may be less than commercial quantity so as to attract Section 20 of the NDPS Act. The weight of actual Ganja recovered is a matter of trial. 27. 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 as has been held in the case of Ibrahim Khwaja Miya Sayyed (Supra). 28. In the case of Suresh Kumar (Supra), the Coordinate Bench of this Court gave benefit to the accused under Section 20 (b) (C) to 20 (b)(ii)(B) by observing that the weight of the contraband was not precise and the actual quantity of Ganja sei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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