Bombay High Court
Sudam Kakaso Babar vs The State Of Maharashtra on 15 December, 2021
Author: V.G.Bisht
Bench: V.G.Bisht
J-BA-196-2021 & BA-1796-2021.DOC
Digitally
signed by
TRUPTI
TRUPTI SADANAND
SADANAND BAMNE
BAMNE Date:
2021.12.15
20:44:55
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 196 OF 2021
Santosh Sambhaji Todkar ...Applicant
Versus
State of Maharashtra ...Respondent
WITH
BAIL APPLICATION NO. 1796 OF 2021
Sudam Kakaso Babar ...Applicant
Versus
The State of Maharashtra ...Respondent
......
Mr. Ganesh Gole i/b. Mr. Ateet Shirodkar for the Applicant in
BA No. 196 of 2021.
Mr.Vijay Killedar for the Applicant in BA No. 1796 of 2021
Mrs. Anamika Malhotra, APP for the Respondent -State.
......
CORAM : V.G.BISHT, J.
RESERVED ON : 6TH DECEMBER, 2021
PRONOUNCED ON : 15TH DECEMBER, 2021
PC:-
1. The present applications have been moved by the
applicants under Section 439 of the Code of Criminal
Procedure in Crime No. 734 of 2020 registered with Islampur
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Police Station, Sangli for offences punishable under Sections
8, 20 and 22 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short, "The NDPS Act").
2. Briefly stated the case of prosecution is that, on 19 th
October, 2020, the applicant Sudam Kakaso Babar was found
in possession of 4.50 kgs Ganja without any license. Similarly,
on 20th October, 2020, the applicant Santosh Sambhaji Todkar
was also found in possession of 166.11 kgs without any
license. Accordingly, the First Information Report (FIR) came
to be lodged.
3. Mr. Gole, learned Counsel for the applicant in Bail
Application No. 196 of 2021, submits that description of the
contraband in the spot panchnama and chemical analyzer's
report is quite contrary. If the chemical analyzer's report is to
be seen carefully, then it is difficult to establish that what was
found was the alleged contraband as defined under Section 2
(b) of the NDPS Act. Moreover, investigating is completed
and the charge-sheet has been filed. No purpose would be
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served by keeping the applicants behind the bars.
4. Mr.Killedar, learned Counsel for the applicant in Bail
Application No. 1796 of 2021, submits that he was allegedly
found in possession of the contraband, which was less than
commercial quantity and then learned Counsel adopted the
submissions advanced by Mr. Gole.
5. Mrs.Malhotra, learned APP, on the other hand, submits
that applicant Santosh Sambhaji Todkar was found in
possession of huge quantity of illegal contraband. The offence
being of serious nature, the applicants do not deserve to be
enlarged on bail.
6. Perused investigation papers including the chemical
analyzer report. Although from the seizure panchnama dated
19th October, 2020, it appears that the applicants were found
in possession of wet ganja weighing 2.10 kgs and 166.11 kgs
but the chemical analyzer's report filed today itself presents
different picture. The chemical analyzer report shows the
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description of the article contained in parcel/s : that the
articles were containing flowering fruiting tops with greenish
leaves and stalks in 79 separate polythene bags.
7. Prima facie, it suggests that investigator had not
separated the flowering and fruiting tops of the cannabis plant
in order to ascertain the exact quantity of ganja and this is
what the findings of the chemical analyzer report.
8. 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, as seen from the FIR, what is found
was 4.50 kgs and 166.11 kgs. of "ganja". However, the
Chemical Analyzer's Report shows that description of the
article contained in parcel/s that the articles were containing
flowering tops mixed with pieces of stalks, stems, leaves and
seeds.
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J-BA-196-2021 & BA-1796-2021.DOC
9. In the case of Shri. Sandip Ashok Raut vs. The State of
Maharashtra1, this Court had also taken into consideration
definition of ganja under Section 2(iii)(b) of the NDPS Act
and also found that Chemical Analyzer's Report showed the
description of material along with seeds, leaves and stalks.
Similar observation was made in case of Hari Mahadu Valse
vs. State of Maharashtra2.
10. As an offshoot of the above, I note debilitating defects in
the prosecution case. I am clear in my mind as to the
inapplicability of Section 37 of the NDPS Act and hold that
the applicants have made out a case for bail.
11. For all the aforesaid reasons, I pass the following order :
ORDER
(i) The applications are allowed.
(ii) Applicant - Santosh Sambhaji Todkar shall be released on bail in Crime No. 734 of 2020 registered with Islampur Police Station, Sangli, 1 Bail Application No. 2522 of 2014 dated 25th March, 2015 2 Criminal Bail Application No. 2299 dated 29 th July, 2021. Trupti 5/8
J-BA-196-2021 & BA-1796-2021.DOC on his executing P.R.Bond in the sum of Rs.25,000/- with one or two surety/ sureties in like amount.
(iii) Applicant - Sudam Kakaso Babar shall be released on bail in Crime No. 734 of 2020 registered with Islampur Police Station, Sangli, on his executing P.R.Bond in the sum of Rs.25,000/- with one or two surety/ sureties in like amount.
(iv) The applicants 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 them from disclosing such facts either to the Court or to any Police Officer.
(v) The applicants shall not tamper with prosecution evidence in any manner and shall co-operate the learned trial Judge in Trupti 6/8 J-BA-196-2021 & BA-1796-2021.DOC expeditious disposal of the trial against them.
(vi) The applicants shall not indulge in similar type of offences in future.
(vii) Bail before trial Court.
(viii) The applications stand disposed off in aforesaid terms.
(V.G.BISHT, J. ) Trupti 7/8 J-BA-196-2021 & BA-1796-2021.DOC Trupti 8/8