A single bench of Justice Bharati Dangre in the order passed on August 29 also noted that there was a discrepancy in the substance seized by the Narcotics Control Bureau from the accused's residence and the sample sent by the NCB for chemical analysis.

The court was hearing the pre-arrest bail plea filed by one Kunal Kadu, who apprehended arrest by the NCB for offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act Sections 8(C) (produce, manufacture or possession of narcotic substance), 28 (attempt to commit offence) and 29 (criminal conspiracy).

According to the NCB, it had carried out searches at Kadu's residence in April 2021 and recovered a green leafy substance in three packets weighing a total of 48 kg. The NCB claimed the green leafy substance was ganja and that since the total weight of the contraband recovered was 48 kg, it fell under the definition of commercial quantity.

Justice Dangre, while relying on the definition of ganja under the NDPS Act, said, “Ganja is the flowering or fruiting tops of the cannabis plant and when the flowering or fruiting tops are not accompanied then the seeds and leaves of the plant are to be excluded.”

“It is implied that if seeds and leaves are accompanied by tops by way of flowering or fruiting then it would amount to ganja. But when the seeds and leaves are not accompanied by the tops then this will not be considered as ganja,” the court said.

In the present case, the NCB has alleged that the substance seized from the accused person's house was a green leafy substance and there is no reference of the flowering and fruiting of tops, Justice Dangre said.

The court also noted that strangely, the report of analysis refers to samples (sent by NCB) being a heterogeneous mixture of flowering and fruiting tops, bits of leaves, stem and stalk along with seeds of plant.

“The discrepancy in what was seized and what was analysed, prima facie satisfy me that there are reasonable grounds for believing that the applicant (Kadu) is not guilty of offences of dealing in commercial quantity,” Justice Dangre said. The court said Kadu's custodial interrogation was not warranted and granted him anticipatory bail.

Kadu's advocate Mithilesh MIshra had argued that mere leaves and seeds, in the absence of fruiting and flowering tops, would not bring the substance within the purview of the term ganja, as defined in the NDPS Act.

NCB's advocate Shriram Shirsat opposed the plea, arguing whether the recovered substance fell under the definition of ganja and if it was a commercial quantity ought to be decided by the court during trial and not at this stage when probe is still on.

Justice Dangre, however, refused to accept the NCB's argument and said it was the duty of the bureau (NCB) to be sure of what substance was seized and what was forwarded for analysis as the same cannot be left for guesswork of the trial court.

The HC said that while considering applications for bail or pre-arrest bail, it was necessary for the court to look into the nature of accusations and evidence collected by the prosecution and to then determine whether the prosecution's suspicion about indictment of the accused /applicant is prima facie true and correct.

(With PTI inputs)