Karnataka High Court
Mujeeb Mehboob vs State Of Karnataka on 17 August, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 17th day of August 2012
:BEFORE:
HON'BLE MR.JUSTICE V.JAGANNATHAN R
CRL.P.No.3685 / 2012
BETWEEN:
MUJEEB MEHBOOB
S/O ALIKHAN
AGED ABOUT 38 YEARS
R/AT MEHBOOBNAGAR
CHINTHAMANI TOWN
CHIKKABALLAPUR DISTRICT
... PETITIONER
(By Sri HASHMATH PASHA, ADV.)
AND:
STATE OF KARNATAKA
BY KALASIPALYA POLICE AND CCB POLICE
BANGALORE, (REP BY LEARNED
STATE PUBLIC PROSECUTOR)
... RESPONDENT
(By Sri SATISH R. GIRJI, HCGP )
CRL.P FILED U/S.439 CR.P.C PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN CR.NO.110/2011 &
SPL.C.C.NO.172/2011 OF KALASIPALYAM P.S.,
BANGALORE CITY, FOR THE OFFENCE P/U/S 20(ii)(c) OF
N.D.P.S. ACT.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING :
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ORDER
The petitioner, said to be A-4, seeks bail in respect of the offence alleged under sections 20(ii) of the NDPS Act.
2. The case of the prosecution in short is that, the investigating officer in question conducted a raid on Room No.27 of Super Lodge, near Pradeep Theatre, Bangalore on 24.5.2011 at 11.10 a.m. and seized 1 Kg 195 gms of charas at the instance of A-4 i.e. the petitioner herein and from other accused 6 Kgs of charas were seized. The charge sheet was submitted after completion of the investigation and the petitioner's request for bail was turned down by the trial court.
2. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondent-State.
3. Learned counsel for the petitioner submits by pointing to the chemical analysis report, that is 3 part of the charge sheet material, that the prosecution is not very definite about the samples seized by it as to charas or only ganja and therefore in the face of such report and the percentage of the positive principle resin not being indicated in the report, having regard to the definition of cannabis plant in section 2(ii) of the NDPS Act and also with regard to the notification specifying different quantity, insofar as cannabis and cannabis resin is concerned, it is only possession of more than 1 kg that would come within the commercial quantity and as far as ganja is concerned, it is possession of more than 20 kgs that would attract the commercial quantity. In the instant case, the allegation is that, from this petitioner 1 kg 195 gms came to be seized. Since the FSL report is not very definite as to the seizure of either charas or ganja from this petitioner, the trial court could not have declined to grant bail.
4. Another submission put forward is that, even as per the statement of this petitioner, said to have 4 been recorded during the investigation, the petitioner was not in occupation of the room number in question, but the room was in the name of Nasir and not this petitioner and for this reason also, the trial court could not have refused bail to the petitioner.
5. In support of the aforesaid submission and also relying on the decision of the Himachal Pradesh High Court reported in 2011(1) Drugs Cases (Narcotics) 37 and the decision of this court reported in 2011(1) Crimes 508, it is argued that, it has to be established that only the fruiting and flowering part of cannabis plants were found in possession of the petitioner to bring it within the definition of ganja. As in the instant case, chemical report is not very definite and there being no material placed to indicate as to the percentage of active principle, the petitioner therefore be released on bail as he is in custody for more than 1 year 3 months.
6. Learned Government Pleader on the other hand submits that the charge sheet is submitted and 5 the accused can very well take his contentions before the trial court and referring to section 2(iii) of the NDPS Act, submission made is that, what was seized from the petitioner was only charas and as the quantity was more than 1 kg, it falls within the commercial quantity and hence bail be rejected.
7. Whether the petitioner has made out a case for grant of bail is the point for consideration in the light of the aforesaid submission put forward.
8. The definition of ' cannabis' in section 2(iii) of the NDPS Act is as under:
(iii) 'cannabis' 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 oil or liquid hashish;
b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied 6 by the tops), by 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;
8. It is therefore clear from the aforesaid definition that, it is only flowering or fruiting tops of cannabis plant excluding the seeds and leaves that constitute ganja. This court in the decision referred to by the petitioner's counsel in K.K. Rejji & others Vs State by Muddeshwar police station, Karwar (2011(1) Crimes 508 has also held that, it is only the fruiting or flowering part of cannabis plants that will constitute ganja.
9. In the case on hand, the FSL report that is produced by the petitioner does not give clear indication as to what was seized was the flowering or fruiting part of cannabis plant and if the samples seized are to be termed as charas, then that would also require the prosecution to indicate as to the 7 percentage of resin that is obtained from the cannabis plant. The FSL report does not give any indication in regard to this aspect also.
10. As per the notification categorizing the quantity into small, medium, intermediate and commercial quantity, at Sl.No.23 the quantity required to constitute commercial quantity is 1 kg and above in respect of cannabis and cannabis resin. As far as ganja is concerned, Sl.No.55 makes it clear that, to attract the commercial quantity, it has to be 20 kgs and above.
11. In the case on hand, the alleged seizure from this petitioner is said to be 1 kg 195 gms and it certainly falls below the commercial quantity. In the decision referred to by the petitioner's counsel viz., Bajinder Singh Vs State of Himachal Pradesh (2011(1) Drugs Cases (Narcotics) 37), the Division Bench of the said High Court has held that, as per the definition u/s 2(ii) (a) of the NDPS Act, it is the separated resin alone which constitute charas and as far as the 8 percentage is concerned, insofar as ganja is concerned, it has been held in the said case that tetrahydrocannabinol are found not only in charas, but also in ganja and the extent of the said ingredient has to be 25% in ganja and 25 to 40 % in charas.
12. In the instant case, the material placed at this juncture through FSL report throws no light as to the percentage of aforesaid ingredient in the quantity seized and there is still doubt as to what was seized was actually charas or ganja.
13. Having regard to the aforesaid factors, in the instant case on hand, the petitioner can be released on bail by imposing conditions to safeguard the prosecution interest. Hence, the following order is passed:
1. The petitioner shall be released on bail on his furnishing personal bond for Rs.50,000/-
with two sureties for the likesum to the satisfaction of the trial court.
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2. He shall not tamper with the evidence and shall not give threat to the witnesses in any manner.
3. He shall not hamper the investigation.
4. He shall attend the court on all dates of hearing.
5. He shall mark his attendance before the concerned police station on the 15th and 30th of every month between 10.00 a.m. and 5.00 p.m.
6. He shall not involve himself in the offence of like nature in future.
7. He shall appear before the trial court regularly on all dates of hearing.
Violation of any one of the above conditions will give rise to cancellation of bail at the instance of the prosecution.
Sd/-
JUDGE Dvr: