Shiv Kumar Mishra Vs.
State of Goa Tr.Home Sec.  INSC 391 (23 February 2009)
JURISDICTION CRIMINAL APPEAL NO. 361______ OF 2009 (@ S.L.P. (Crl.) NO.8552 of
2008) Shiv Kumar Mishra ...Appellant State of Goa Through Home Secretary
O R D E R
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.
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
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
3 (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
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
The fine was,
however, not reduced.
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.
the present appeal, the same submission has been advanced on behalf of the
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.
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
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.
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 6 much lesser
sentence than when the seized commodity was treated to be of commercial
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.
therefore, see no reason to interfere with the judgment and order passed by the
High Court and dismiss the appeal accordingly.