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.  

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  

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