NDPS Act | Cannabis Seeds With Flowering Tops Constitute 'Ganja', Entire Material Weighed To Determine Quantity: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that cannabis seeds, if accompanied by flowering tops, would fall within the definition of 'ganja' under Section 2 (iii)(b) of the NDPS Act and entire weight of the material would be taken into consideration in order to ascertain the total weight of the contraband.

Justice Deepak Gupta said, "no doubt that material recovered from the petitioner included the seeds but the same were accompanied by flowering tops dried of the cannabis plant and, therefore, prima-facie the seeds accompanied by the flowering tops would fall within the definition of 'ganja' and entire weight of the material is to be taken into consideration in order to know the total weight of the contraband recovered."

These observations were made while hearing the bail plea filed by one Sanjay Upadhyay, who was booked under Sections 20, 29, 25, 27 of the NDPS Act, for being in possession of 30 kgs of cannabis.

It was contended by the petitioner that there is non-compliance of Section 42 of the NDPS Act and the contraband confiscated by the prosecution does not fall within the purview of Section 2(iii)(b) of the NDPS Act, because ganja is flowering of fruiting tops of Cannabis Plant (excluding seeds and leaves) and that in the present case, as per the FSL report, the recovered material is “greenish brown-coloured flowering tops dried along with the seeds”.

The counsel contended that confiscated material cannot be termed as ganja as a whole and it was a mixture and that seeds are liable to be excluded from the total weight and if that weight is excluded, the recovered material will be less than 20 Kg falling in the non- commercial category.

Considering the submissions the Court referred to Section 2(iii)(b) of the NDPS Act,  and opined that, "It is, thus, clear on bare perusal of the afore-said definition of 'ganja' that seeds and leaves are excluded from definition of ganja, only when the same are not accompanied by the tops."

Reliance was also placed upon High Court's decision in Ashok Kumar v. State of Haryana, [2021(2) DC (Narcotics) 33] wherein the it was held that, "As per the definition of ganja contained in Section 2(iii)(b) of the NDPS Act, the seeds and leaves are excluded from definition of ganja only when the same are not accompanied by the tops. No doubt in the present case the contraband recovered from the petitioners included the seeds and leaves but the same were accompanied by the flowering/fruiting tops of the cannabis plant."

The Court further clarified that it is the "greenish brown-coloured flowering tops dried along with seeds", which have been recovered from the petitioner and so, having regard to the legal position explained by the Court in Ashok Kumar's case, no advantage can be given to the petitioner for the contrary view taken by Bombay High Court in Shri Hari Mahadu Valse v. The State of Maharashtra, , wherein doubt has been expressed as to whether the total weight is to be taken into consideration.

In view of the afore-said legal position, the Court opined that the contention of counsel for the petitioner to the effect that the entire recovered material cannot be considered to be ganja or that seeds are required to be excluded for the purpose of knowing the total weight, "is without any merit."

Adding that the petitioner is involved in four more cases pertaining to the NDPS Act and his conviction is already recorded in two, the Court said, "these details contained in the custody certificate in itself are sufficient to show that the petitioner is a habitual offender dealing in drug trafficking."

Even at the time of conducting raid, he was found making pouches of ganja, as apart from 30 kg. of ganja, as many as 1384 empty pouches were recovered from him, it said.

In the light of the above the Court dismissed the plea.

Appearance: Lakshay Bector, Advocate for the petitioner.

Karunesh Kaushal, AAG, Punjab.

Citation: 2024 LiveLaw (PH) 28

Title: Sanjay Upadhya v. State of Punjab

Click here to read/download the order