Bombay High Court
Rahul Bhimrao Pawar vs The State Of Maharashtra on 3 January, 2022
Author: V. G. Bisht
Bench: V. G. Bisht
BA-2977-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2977 OF 2021
Rahul Bhimrao Pawar ... Applicant
Versus
The State of Maharashtra ... Respondent
Mr. Swaraj S. Jadhav, for the Applicant.
Ms. Pallavi N. Dabholkar, APP, for the State-Respondent.
CORAM : V. G. BISHT, J.
RESERVED ON : 9th December, 2021.
PRONOUNCED ON : 3rd January, 2022.
PC:-
. The present application has been moved by the applicant under
Section 439 of the Code of Criminal Procedure in C.R. No. 377 of 2020
registered with Chikhli Police Station, District-Pune for the offences
punishable under Sections 8(c), 20(b)(ii)(c) and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ( NDPS Act ).
2 It is the case of prosecution that on 17/10/2020 the informant
and other staff members were patrolling to keep a tab on illegal
activities of the known criminals on account of Navratra Festival. While
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doing so, they met a team of a Narcotic Control Bureau who was also
patrolling. Around 1-00 p.m. they came across two persons sitting on a
motorbike under a tree and on being confronted, they found their
movements suspicious. The applicant and other accused were found in
possession of a gunny sack. Upon untying the gunny sack, they found
packets containing some brownish flowering-fruiting tops, pieces of
stalks, stems, leaves and seeds. Accordingly, the packets were weighed
on a electronic weighing machine and it weighed 27 Kgs and 750 grams
of ganja. The informant accordingly lodged the report.
3 Mr. Jadhav, learned Counsel for the applicant, submits that the
alleged contraband doesn't appear to fall within the four corners of
"ganja" as defined under Section 2(b) of the NDPS Act. There is non
compliance of said definition. Moreover, investigation is completed and
the charge-sheet has been filed. In such circumstances, no purpose
would be served by keeping the applicant behind the bars, argued
learned Counsel.
4 Ms. Dabholkar, learned APP, on the other hand, vehemently
opposed the submissions by contending that the applicant was found in
possession of 27kgs and 750 gms ganja which was commercial quantity
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and having regard to the seriousness of the offence, the application is
required to be rejected.
5 Perused the investigation papers including Chemical Analyzer's
report.
6 There is no dispute that the "commercial quantity" in relation to
NDPS Act for "ganja" means, any quantity greater than 20 Kgs. Then,
Section 2(b) & (c) defines "ganja" as 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, and
any mixture, with or without any neutral material, of any of the above
forms of cannabis or any drink prepared therefrom.
7 The definition of term "ganja" makes it clear that "ganja" is the
flowering or fruiting tops of cannabis plant, excluding the seeds and
leaves when not accompanied by the tops. In the case in hand, from the
seizure panchanama it is clear that what was seized was flowering-
fruiting tops, stalks pieces, stems, leaves and seeds weighing 27kgs and
750 gms.
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8 The above state of affairs would make it clear that there is nothing
on record to prima facie establish that before carrying the weight of the
contraband, the Investigator had separated the flowering or fruiting tops
of cannabis plant in order to ascertain the exact quantity of ganja. This
fact becomes further clear from the CA report which also shows that the
description of articles contained in parcels was greenish brown coloured
flowering-fruiting tops mixed with pieces of stalks, stems, leaves and
seeds. Apparently, there was no quantification of flowering tops and
therefore, it is quite questionable whether the quantity can be said to be
commercial.
9 In view of above, I do not find the applicability of Section 37 of
the NDPS Act and hold that the applicant has made out a case for bail.
10 For all the aforesaid reasons, I pass the following order.
ORDER
(i) Applicant- Rahul Bhimrao Pawar shall be released on bail in C.R. No. 377 of 2020 registered with Chikhli Police Station, District-Pune on his executing P .R. bond in the sum of Rs. 25,000/- with one or more sureties in like amount.
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(ii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts either to the Court or to any Police Officer.
(iii) The applicant shall not tamper with the prosecution evidence in any manner and shall co-operate the learned trial Judge in expeditious disposal of the trial against him.
(iv) The applicant shall not indulge in similar type of offences in future.
(v) The observations made herein-above are prima-facie in its nature for the purpose of deciding the bail application only. The trial Court shall not be influenced by the observations while deciding the case on merits.
(vi) Bail before the trial Court.
(vii) The application is allowed in the aforesaid terms and stands disposed of accordingly.
REKHA PRAKASH (V. G. BISHT, J.) PATIL Digitally signed by REKHA PRAKASH PATIL Date: 2022.01.03 Rekha Patil 5/5 15:05:06 +0530