Justice Urmila Joshi Phalke made the observation while granting bail to a man accused of carrying commercial quantity of ganja (marijuana).
Ganja only refers to the fruiting or flowering heads of the cannabis plant and not its seeds or leaves, observed the Bombay High Court’s Nagpur bench recently while granting bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
A single Bench of Justice Urmila Joshi Phalke noted that the definition of ‘ganja’ under the NDPS Act is restricted and does not include the seeds and leaves of the ganja plant.
“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”, the Court noted.
The Court proceeded to grant bail to one, Mohammad Jakir Nawab Ali, who had been accused of carrying a commercial quantity of cannabis.
The observation regarding what constitutes ganja under the NDPS Act assumed importance since the police, in this case, had failed to properly segregate the seized contraband before weighing it, raising doubts about whether it was a commercial quantity (more than 20 kilograms) of ganja that was seized.
Ali (the accused/ bail applicant) was arrested on December 7, 2021, following a police raid based on a tip-off about the transportation of contraband.
Officers from the local Crime Branch intercepted a white Maruti Swift car driven by Ali near Tunki Shivar. During the search, police seized approximately 50 kilograms of what was labelled as ganja from the back seat.
However, during his bail hearing, Ali’s counsel raised critical issues regarding the police investigation. The defense counsel contended that the seized materials primarily consisted of leaves, seeds, stems, and stalks—parts of the cannabis plant that do not meet the NDPS Act’s definition of ganja unless accompanied by flowering or fruiting tops.
The Court agreed that there were questions casting doubt on the validity of the charges (of carrying a commercial quantity of a drug) against Ali.
“As seen from the FIR and the investigation papers, the quantity of 50 kg of ganja was seized from the vehicle. However, the inventory certificate as well as the recitals of the FIR and the panchnama show that the seized articles were leaves, seeds, stems, and stalks,” the Court observed.
The court further observed,
“Admittedly, none of the investigating papers shows that either these materials were segregated and thereafter weighed. The above state of affairs would make it clear that 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.”
The Bench opined that it was difficult to ascertain whether the quantity of contraband seized by the police could be said to be a commercial quantity.
Ali’s counsel also raised concerns about delays in the trial, arguing that his right to a speedy trial was being violated.
The Court acknowledged this point, referencing a recent Supreme Court decision in Ankur Chaudhary vs. State of Madhya Pradesh, which highlighted that an inordinate delay in trial would violated an accused person’s right to a speedy trial under Article 21 of the Constitution of India.
In light of these arguments, the Court ruled that Ali had made a sufficient case for bail.
“Thus, after perusal of the investigating papers, prima facie, the material complied with the charge-sheet, 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 plants are classified as ganja, in the absence of the said substance being seized from the applicant, prima facie involvement of the applicant is difficult to hold,” the Court said.
