IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 361______ OF 2009
(@ S.L.P. (Crl.) NO.8552 of 2008)
Shiv Kumar Mishra ...Appellant
Vs.
State of Goa Through Home Secretary ...Respondent
O R D E R
1. Leave granted.
2. The appellant was convicted under Section 20(b)
(ii)(B) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as
`the NDPS Act’), and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of
Rs.30,000/- and in default of such payment to
undergo simple imprisonment for three months.
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3. On 9th December, 2004, the appellant was found
in possession of 1.61 Kgs. of Ganja. Under the
provisions of the NDPS Act, 1 Kg. of Ganja has been
defined to be “small quantity” and 20 Kgs. and
above has been defined as “commercial quantity”.
When the seized Ganja was analyzed on 15th December,
2004, the weight thereof together with jute bag and
plastic carrying bag was found to be 1.595 Kgs. The
Ganja alone, without the jute bag and plastic
carrying bag, weighed 1.31 Kgs. Before the High
Court, it was contended on behalf of the appellant
that once the moisture content of the seized Ganja
was excluded, the actual weight of the contraband
would weigh less than 1 Kg., which would have
attracted a punishment of imprisonment for a term
which could extend to six months or fine, which
could extend to Rs.10,000/-, or with both. It was
also submitted that the expression `Ganja’, as
defined in Section 2(i)(b) of the NDPS Act, does
not include seeds and leaves when not accompanied
by the tops. It was also submitted that the expert
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(PW.1) Mahesh Kaissare had not been able to specify
the weight of the flowery part alone or the leaves
separately. It was prayed before the High Court
that in the circumstances since the appellant had
already undergone two months and six days out of
the sentence, the same be considered as the
substantive sentence and that the appellant would
deposit the fine in case the same has not been
deposited.
4. The High Court rejected the submission made on
behalf of the appellant, but considering the
quantity involved which was little over 1 Kg.,
reduced the sentence from three years’ rigorous
imprisonment to one year’s rigorous imprisonment.
The fine was, however, not reduced.
5. Not being satisfied with the order of the High
Court reducing the sentence from three years to one
year, the appellant has moved this Court for
further relief.
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6. In the present appeal, the same submission has
been advanced on behalf of the appellant.
7. Learned counsel for the appellant submitted
that having regard to the definition of “Ganja” in
Section 2(iii)(b) of the NDPS Act, the seeds and
leaves ought not to have been included while
weighing the seized contraband since the same was
not accompanied by tops. It was urged that
excluding the seeds and leaves the actual weight of
the seized Ganja would be below 1 Kg. which would
attract a much lesser punishment of imprisonment
for a term which could extend to six months or with
fine, which could extend to Rs.10,000/-, or with
both.
8. Learned counsel for the appellant submitted
that the order of the High Court reducing the
period of sentence to one year was erroneous since
the seized Ganja would be less than 1 Kg. and could
not, therefore, be taken to comprise commercial
quantity.
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9. Despite several opportunities, the State did
not appear to contest the matter and the same was
taken up for final disposal in the absence of the
State.
10. Section 2(iii)(b) of the NDPS Act defines
“Ganja” as follows :-
“‘ganja’, that is, 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;”
An attempt has been made on behalf of the
appellant to convince us that the seized Ganja was
not accompanied by flowering or fruiting tops and
hence the weight of the seeds and the leaves would
have to be excluded on account of the said
definition, which would reduce the weight of the
seized Ganja considerably so as to exclude it from
the definition of commercial quantity and attract a
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much lesser sentence than when the seized commodity
was treated to be of commercial quantity.
11. The submissions made by learned counsel for the
appellant are not convincing since from the
evidence on record it has been established that the
seized Ganja consisted of a greenish brown colour
leafy and flowery parts of the plant (in moist
condition) which, in terms of the definition of the
expression “Ganja”, would include the seeds and
leaves of the cannabis plant since the seized Ganja
was accompanied by the flowery parts of the plant.
As far as exclusion of the moisture content of the
seized Ganja is concerned, there is nothing in the
NDPS Act to suggest that when the weight of a
quantity of Ganja is to be ascertained, the
moisture content has to be separately ascertained
and excluded. On the other hand, we are of the
view that the weight of the contraband would be the
weight taken at the time of seizure.
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12. We, therefore, see no reason to interfere with
the judgment and order passed by the High Court and
dismiss the appeal accordingly.
________________J.
(ALTAMAS KABIR)
________________J.
(CYRIAC JOSEPH)
New Delhi
Dated: 23.2.2009