Pareshbhai Dalsukhbhai Parmar vs State Of Gujarat

A.Y. Kogje, J

Vide the order dated 03Â11Â2020, both the applications are ordered to be tagged. Hence, both the applications are taken up for joint hearing and

disposal.

These applications are filed by the applicants under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR

registered as C.R. No.IIÂ281 of 2019 with KAMREJ POLICE STATION, DISTRICTÂ SURAT, for the offence punishable under SectionsÂ8(c),

20(c) and 29 of the Narcotic Drugs and Psychotropic Substance Act.

Learned advocate appearing on behalf of the applicants submits that considering the nature of offence, the applicants may be enlarged on regular

bail by imposing suitable conditions.

Learned Advocate for the applicants submitted that the applicants are innocent, are not connected with the Narcotic substance and are falsely

sought to be implicated. It is submitted that the investigation is over and the chargeÂsheet is filed and therefore, there is no question of interfering or

influencing the evidence or the witnesses.

It is submitted that the applicant ÂPareshbhai Dalsukhbhai Parmar has not found in conscious possession of the Narcotic substance Ganja and

only on the basis of the statement of the coÂaccused, from whom, the Narcotic substance is recovered, is the basis for implicating the applicant.

Moreover, no overt act is attributed to the applicants for commission of offence, considering the maximum sentence that can be imposed is 10 years

extended upto 20 years, the case of the applicants deserves consideration.

It is submitted that in case of accused Dipakbhai Lavjibhai Kalsariya, learned Advocate adopted the submission made in case of applicantÂ‐

Pareshbhai Dalsukhbhai Parmar. It is submitted that the quantity though is the commercial quantity, it was incumbent upon the Investigating Agency to

segregate the pure form of Narcotic substance â€" Ganja. The Investigating Agency while considering the total quantity of Ganja of 34.416 kg, has

also taken into consideration, the weight of branches and leaves, which according to the applicants, needs to be deducted and then for the purpose of

quantifying the exact quantity to attract the provision of NDPS Act, more particularly, to get the benefit of the Definition under SectionÂ2(viia) and to

consider the case to be of less than commercial quantity to treat the case as below commercial quantity.

As against this, on the other hand, the learned Additional Public ProsecutorÂ​Mr. H.K. Patel, appearing for the respondentÂ​State has opposed grant

of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor submitted that there is clear evidence against the

applicants. Learned Additional Public Prosecutor jointly submitted that in both the applications, the applicants are arraigned in the same offence and

during the course of investigation, sufficient evidence is available against them to prima facie filed the chargeÂsheet. It is submitted that it is huge

quantity of Ganja of 34.416 kg of commercial quantity and therefore, in view of SectionÂ37 of NDPS Act, the case of the applicants may not be

considered.

It is submitted that the applicants have failed to make out before this Court any reasonable ground to satisfy this Court that the applicants are not

guilty of such offence.

It is submitted that evidence in the form of statement of the witnesses, who is land lord of the premises and had given the premises on rent as well

as the CCTV footages indicating the transportation of the substance by a vehicle by the applicants, is also available on record.

Having considered the rival submissions of the parties and having perused the documents on record, the Court has taken into consideration the

statement of witness namely Virendra who has indicated about the occupation of the premises in which the Narcotic substance was found.

It was stated in the complaint that informant had received information on mobile that one person namely Dipakbhai residing at first floor of the

house of Virendrabhai Chauhan at Plot No.28 Kolvad Village, Matrukrupa Soceity, Taluka: Kamrej, DistrictÂSurat who is having the illegal

possession of Ganja thereafter, in the presence of Panchas the raid was carried out after following due procedure of SectionÂ42 of NDPS Act and

during the search of his house 70 parcels were found and out of that 1 parcel was open for checking which was having a solid smell of live Ganja and

therefore FSL officer were called on the place and thereafter, weight was carried out and total weight of all the parcel was 34.416kg, thereafter, the

FSL officer after examination gave positive opinion that the substance is Ganja.

During investigation, it was revealed by Dipakbhai that the said house is in the ownership of Virendra Chauhan and it was taken on rent by present

applicant namely Pareshbhai Parmar and the rent agreement was entered between Dipakbhai and owner Virendrabhai. It was further revealed by

Dipakbhai that the said premises was taken on rent by Paresh Parmar and his wife Renukaben Parmar and it was further revealed that yesterday

they had come and placed these parcels of Ganja and all the aforesaid facts were stated before the Panchas. Therefore, it was a case of prosecution

that Dipakbhai Kalsariya, Pareshbhai Parmar and his wife Renukaben is in connivance with each other and allegedly kept NDPS substance of the

commercial quantity i.e. 34.416 kg and thereafter FIR came to be registered before Kamrej Police Station.

Investigation reveals that the substance Ganja is of the commercial quantity i.e. 34.416 kg as defined in the schedule specifying small quantity and

commercial quantity defined as per SubÂSectionÂviii(a) and xxiii(a) of SectionÂ2 of the Act. Wherein in the Sr. No.55, it is stated that Ganja small

quantity is 1000grm and commercial quantity is 20kg and in the present case from the house of Dipkabhai, 34.416 kg of Ganja of commercial quantity

was caught, thus rigger of SectionÂ​37 will apply in this case.

The Court has also taken into consideration the evidence with reagard to the CCTV footages, which would indicate that the Vehicle Eco Maruti

was used for transporting the Narcotic substance to the premises and there it was unloaded.

The Definitions under SectionÂ2 (iii)(b) of the NDPS Act, is as under: “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 knonwn or designated;

The aforesaid Definition clearly specifies that the seeds and leaves are to be excluded only when not connected by tops otherwise, entire plant

flowering or fruiting tops of the cannabis plant is required to be covered under the Definition of Ganja.

However, at the stage of bail, the aforesaid exercise is unwarranted and further, it would be appropriate to refer to the decision of the Hon'ble

Apex Court in the case of Shiv Kumar Mishra v/s. State of Goa reported in (2009) 3 SCC 797, wherein in ParaÂ​13, 14 and 15, it is held as under:

“13. 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 much lesser sentence than when the seized

commodity was treated to be of commercial quantity.

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.â€​

The Court is not required to segregate the purity of substance and to consider the weight to attract the Definition of commercial quantity or

otherwise. The commercial quantity of Ganja as per the Schedule attached to the NDPS Act is 20kg and hence, rigour of SectionÂ37 of the NDPS

Act would squarely to be attracted.

Moreover, in the pleadings or during the course of arguments, nothing has come on record to take the case of the applicants out of the rigour of

SectionÂ37 of the NDPS Act, as nothing is produced on record to suggest that there is a reasonable ground to hold that the applicants have not guilty

of the offence.

In view of the aforesaid facts and circumstances, no case is made out for the exercise of discretion in favour of the applicants for the grant of

regular bail in connection with aforesaid C.R. Hence, both the applications are dismissed.

Rule is discharged.