Chandra Bose v. Exise Circle Inspector, Exise Enforcement & Narcotic Special Squad, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **SATURDAY, THE 17TH DAY OF NOVEMBER 2012/26TH KARTHIKA 1934** **Bail Appl..No. 7742 of 2012 ()** **-----------------------------N.D.P.S. CRIME NO. 1/12 OF EE & ANSS, THIRUVANANTHAPURAM DISTRICT ------------------** **PETITIONER :** **--------------------** **CHANDRA BOSE, AGED 36, S/O. KRISHNANKUTTY, CHARIVILA PUTHEN VEEDU PARAYIL MALAYIL, VENGOOR POST, THEVANOOR DESOM ELAMADU VILLAGE, KOTTARAKARA TALUK** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** **RESPONDENT :** **-----------------------** **EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT & NARCOTIC SPECIAL SQUAD TIRUVANANTHAPURAM, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. SREEJITH V.S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06-11-2012, THE COURT ON 17/11/2012 PASSED THE FOLLOWING:** **Mn** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 7742 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of November, 2012. ## **ORDER** Petitioner is the accused in Crime No.1 of 2012 of Poojapura Police Station, who is alleged to have committed offences punishable under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act. 2. The allegation against the petitioner is that on 20.6.2011 at about 7 p.m., on receiving intimation, the officers concerned reached the place and found the petitioner in possession of 24 Kgs. of Ganja, with leaves, seed, stem and fruit in a bag at Thampanoor, Thiruvananthapuram. He was arrested and a sum of Rs.600/- was seized. Petitioner has been in custody from 20.6.2012 onwards. 3. Learned counsel appearing for the petitioner pointed out that the petitioner has been in custody from 20.6.2012 and his continued custody is unnecessary. It is B.A.7742/2012. 2 further contended that the article seized contained seeds and leaves of cannabis plant and in determining the weight of the contraband article, the leaves and seeds will have to be segregated from the flowering and fruiting tops and if that be done, it can be found that the quantity of contraband seized from the possession of the petitioner is less than 20 Kgs. If that he so, the petitioner is in possession of only quantity of Ganja over the small quantity and less than commercial quantity and his continued detention is improper and illegal. In support of his contention, learned counsel relied on the decisions reported in **E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau** (AIR 2008 SC 1720) and **Salam v. Union of India** (2008(1) K.L.T. 498). 4. Learned Public Prosecutor opposed the petition. He referred to the definition of Narcotic Drug and cannabis under the N.D.P.S. Act and contended that the weight of the article as is seized has to be determined and the claim that the seeds and leaves will have to be B.A.7742/2012. 3 segregated from the contraband seized in the case on hand and the balance weight alone can be taken for consideration is not in accordance with law. It was contended by the learned Public Prosecutor that the petitioner cannot dispute that the article seized from his possession is Ganja. What are excluded from the definition of Ganja are seeds and leaves when not accompanied by tops. In the case on hand, the mahazar prepared by the officer concerned will clearly show that the Ganja had flowering and fruiting, in which case the article seized could fall within the meaning of cannabis under Section 2(iii)(b) of the Act. Learned Public Prosecutor further contended that the article seized falls within the definition of Narcotic Drug and the notification specifying the small quantity and commercial quantity makes mention of only narcotic drug and psychotropic substance, the weight of which have been given in columns 5 and 6 constituting small quantity and commercial quantity. Learned Public Prosecutor drew the attention of this court the decision reported in **Binu v. Union of India** 4 B.A.7742/2012. (ILR 2011(3) Kerala 135) and an unreported decision of this court in **B.A. 6034 of 2012** disposed of by order dated 16.10.2012. It was contended that the claim of the petitioner regarding segregation of some of the elements of the contraband seized has no legs to stand. 5. After having heard learned counsel for the petitioner and the learned Public Prosecutor, and after having considered the relevant provisions of the Act and the decisions referred to by both sides, it is felt that the contention raised by the petitioner has no foundation. Section 2(iii) of the N.D.P.S. Act defines cannabis as follows: “(iii) “cannabis (hemp)” means- (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish; (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 B.A.7742/2012. 5 whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.” Section 2(xiv) defines Narcotic Drugs thus: “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.” On a reading of the definition of cannabis especially Ganja as contained in Section 2(iii)(b), if the contraband seized contains seeds and leaves of the cannabis plant only, then it does not quality to become cannabis under the N.D.P.S. Act and may fall under the definition of Narcotic Drug or noxious substance under some other Act. But when the article seized contains flowering and fruiting tops with seeds and leaves, it squarely falls within the definition of Ganja under the Act. In fact, this is not disputed by the learned counsel for the petitioner. The definition of B.A.7742/2012. 6 Narcotic Drug contains cannabis as defined under Section 2 (iii)(b) of the Act referred to above. 6. The notification specifying small quantity and commercial quantity only makes mention of Narcotic Drug and Psychotropic Substance. It is true that in the decision reported in **Micheal Raj's case** (supra) it was held that for determining the quantity of the narcotic drug or psychotropic substance, the weight of the prohibited article alone can be taken. In the decision reported in **Salam's case** (supra), this court on the basis of the concession made by the Assistant Solicitor General also held so. But in the decision reported in **Shaji v. State of Kerala** (I.L.R. 2004(2) Kerala 600), it was held that the contents as a whole has to be taken for the purpose of determining the weight of the substance. After referring to the Note appended to the notification after the decision in **Micheal Raj's case** (supra), this court in the decision reported in **Binu v. Union of India** (I.L.R. 2011(3) Kerala 135) had B.A.7742/2012. 7 occasion to hold that weight of the substance as is obtained has to be determined. 7. The contention that narcotic drug or psychotropic substance will have to be separated from other substances cannot be countenanced. The contention that even though the article seized falls within the definition of narcotic drug, for the purpose of determining the weight of the substance in the case on hand, the flowering and fruiting top will have to be segregated from the seeds and leaves and thereafter the weight of the Ganja has to be determined does not stand to common sense. After having accepted that the contraband seized contains flowering and fruiting tops along with seeds and leaves and that constitute narcotic drug under the provisions of the Act, one cannot accept the contention that there has to be segregation of the contents for the purpose of weighing in order to ascertain whether the quantity seized falls within the small quantity or commercial quantity. B.A.7742/2012. 8 8. It therefore follows that the claim of the petitioner cannot be accepted and the quantity of Ganja seized from his possession exceeds the commercial quantity. 9. Considering the nature of the offence committed by the petitioner, the quantity of contraband seized, the consequences of such article being sold to the public etc., it is felt that it may not be appropriate to grant bail to the petitioner at this stage. This application is accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.