T. Sudanthiram, J.@mdashThe appellant herein stands convicted by the trial Court for an offence u/s 8(c) r/w 20(b)(ii)(c) of the NDPS Act and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 1 lakh in default to undergo two years rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellant herein preferred this criminal appeal.
2. The case of the prosecution in brief is as follows:
On 22.10.2002, at 9.00 p.m., P.W.2, Superintendent of Customs, Preventive Unit, Salem, received a telephonic information that the accused keeping and selling ''ganja'' at Nambiyur and on raiding his house, he could see ''ganja'' worth Rs. 2 lakhs. P.W.2, received an information report Ex.P.14 and forwarded a copy of it to the Superior officer, Assistant Commissioner of customs. Then P.W.2 went to the spot and the informant identified the accused keeping surveillance. On the next day on 23.10.2002 at 9.00a.m., he requested P.W.3 Gnanasekaran, Village Administrative Officer, Emmampoondi, and other other administrative officer, Subramaniam to stand as mahazar witness and entered into the house of the accused at 10.30a.m., which was situate at D. No. 608/1, Kovai main road, Nambiyur. He went to the first floor of the house and he saw the accused and his wife being present in the house. On enquiry, the accused admitted that he was having ganja in a room in the house. P.W.2 also explained to the accused about the provisions of Sections 8(c) r/w 20(b)(ii)(c) of the NDPS Act and the accused told him that he could be searched by P.W.2 Officer himself. P.W.2 obtained the signature of the accused under Ex.P.7 in which the accused consented that he could be searched by P.W.2, Superintendent himself. P.W.2 on searching the house of the accused found ''Ganja'' being spread on the floor of the bedroom of the house. Those ''Ganja'' were filled up in two gunni bags and marked as G1 and G.2 and on weighing G.1 bag contained 12 kilograms and G.2 contained 12 Kilograms of Ganja. Two samples of each bags were taken in polythene bags and sealed. The signature of the witnesses and also the signature of the accused also were obtained. The Ganja bags were also sealed and the signature of the witnesses and the accused were obtained. Mahazar Ex.P.8 was prepared at about 12.15 for the seizure of the Ganja and in the mahazar, the signature of the witnesses and the accused were obtained. At the time of seizure wife of the accused was also present and her thumb impression was also obtained in the mahazar. The Inspector of Customs Rajakrishnan recorded confession statement of the accused and the signature of the accused was obtained in the said recorded confession Ex.P.9. P.W.2 also signed in Ex.P.9. P.W.2 recorded a case in O.R. No. 3 of 2002 against the accused for an offence u/s 8(c) r/w 2(b)(ii)(c) of the NDPS Act. The accused was arrested at about 1.00p.m. The accused also sent for remand and the properties were sent to the court under Form-95. The properties being returned by the Court and they were kept in the Court. He also gave a requisition to the Court for sending the samples for chemical analysis. P.W.1 chemical analyst on analysing both the samples marked as G1S1 and G2S1 each weighing 55.2 grams and 49.2 grams respectively. On analysing the samples, P.W.1 found that the samples contained cannabis (Ganja) and issued certificate Ex.P.1.
3. P.W.3 Village Administrative Officer, Emmampoondi, deposed before the Court about the seizure of Ganja from the house of the accused.
4. The prosecution has examined three witnesses, marked 15 exhibits and produced four material objects and the trial Court after examining the accused u/s 313 Cr.P.C., the accused had denied his complicity. The accused had stated that a case has been foisted against him on the basis of the false complaint given by some persons on jealous and further stated that he was detained by the customs authorities in a lodge and his signature was obtained in five or six blank papers. The accused had chosen to examine one Shivaji as defence witness who had deposed that he knew the accused for the past 23 years and on 22.10.2002 at 11.00a.m while he was talking to the accused, his wife and one Krishnasamy, the Customs officials came to the house of the accused and enquired and the accused and his wife were taken by the officials. At about 6.00p.m., wife of the accused returned and informed him that a case has been registered against the accused. The trial Court after analysing the evidence convicted the accused as stated above.
5. Mr. R.Gandhi, learned Senior Counsel appearing for the appellant submitted that while the accused was in his house, he was forcibly taken by the customs authority and a case has been foisted against him and the trial Court had erred in disbelieving the evidence of D.W.1 and further submitted that the evidence of P.W.2 is not corroborated by the evidence of any of the respectable witnesses from the same locality and P.W.2 has failed to take any neighbour as a witness for the alleged seizure as required u/s 100 Cr.P.C.
6. The learned senior Counsel further submitted that the accused is convicted for being in possession of Ganja of commercial quantity, i.e., according to the prosecution 22 kilograms of Ganja, but the prosecution has failed to establish that the total weight of the Ganja was 22 kilograms, As per mahazar Ex.P.8, the total Ganja was filled in two bags and weighed along with those bags. Though it is mentioned in the mahazar Ex.P.8 as polythene bags, it is mentioned in the evidence by P.W.3 mahazar witness as gunny bags and the weight of the two gunny bags were not excluded while charging the accused for being found in possession of commercial quantity of Ganja, i.e., above 20 kilograms of Ganja. According to the learned Senior Counsel, the appellant was released on bail by the Honourable High Court before the commencement of the trial on the ground that while calculating the total weight of the Ganja, the weight of the bags were not excluded, but in spite of that the prosecution has not taken any steps to weigh the gunny bags and exclude it from the total weight of the Ganja and as a result, the prosecution has failed to establish that the accused was not in possession of commercial quantity of the Ganja.
7. The learned Senior Counsel vehemently submitted that as per the chemical analyst report Ex.P.1, two samples were sent for analysis and the samples contained flowering tops, seeds, leaves, stem etc.,. The stem should not be considered as Ganja and the weight of the stems should have been excluded. Further according to the Analyst report, apart from Ganja materials other materials also were found in the sample, since the analyst had mentioned in the report "etc.,". There is a failure on the part of the prosecution to establish that the total substance weighing 22 kilograms was only a part of Ganja and therefore, the minimum sentence of 10 years as per Section 20(b)(ii)(c) of the Act is not applicable to the appellant.
8. Per contra, Mr. Dhanapal raj, learned Special Public Prosecutor submitted that the parts of Ganja plants included flowering tops, seeds, leaves and stem and the stem is not a separate part, and therefore, it is not possible for weighing the total quantity excluding the stem. The learned Special Public Prosecutor further submitted that the word "etc.," used by the analyst in his certificate Ex.P.1, is only the usual language which is adopted and it would not mean that any other substance was mixed up.
9. The learned Special Public Prosecutor also submitted that the Ganja was filled only in polythene bags and the weight of the polythene bags would not be more, so as to reduce the weight of two kilograms from the total quantity of 22 kilograms. The learned Special Public Prosecutor also pointed out that the accused himself admitted his guilt and given a confession statement Ex.P.9 before the officer.
10. This Court considered the submission made by both parties and also perused the records. M.O.4, the ganja bag was brought and seen by this Court.
11. P.W.2, the Superintendent of Customs had clearly deposed about the information and on information going to the house of the accused and on search of the house, the Ganja being found and about its seizure. The evidence of P.W.2 is also corroborated by the evidence of P.W.3, Village Administrative Officer of Emmumpoondi, though P.W.2 has not taken witness from nearby the house of the accused , he had taken along with the witness P.W.3 and also Village Administrative Officer of the same village Nambiyur. The evidence of P.W.3 mahazar witness being unshattered in the cross examination.
12. Though according to the prosecution, the accused had admitted his guilt and his statement was recorded by Inspector of Customs, Rajakrishnan, he had not been examined by the prosecution before the trial Court. In the absence of his examination, this Court does not want place any reliance on the statement Ex.P.9 recorded by him. Even then the case of the prosecution regarding the seizure of Ganja from the house of the accused is established. The accused also had signed in the mahazar Ex.P.8 prepared at the time of search and seizure and also he has signed on the properties seized and sealed.
13. The next question that arises for consideration is that whether the prosecution had established that the total quantity of Ganja seized is commercial quantity of above 20 kilograms or not. According to the prosecution, the total weight of Ganja is 22 kilograms weighed along with two polythene bags. The prosecution expects the Court to presume that the total weight of the two bags would not exceed two kilograms. Pending investigation, the accused also was released on bail by this Honourable High court in Crl.O.P. No. 30722 of 2002 dated 16.02.2002 that u/s 37 of NDPS Act did not apply as the total quantity of the Ganja was roughly estimated as 22 kilograms along with two gunny bags. In spite of that order by the High Court, the prosecution has not taken any steps to discharge its burden. As the total weight of the contraband was marginally high, than the weight for the category of commercial quantity, the prosecution could have taken steps easily to prove the weight of those two polythene bags.
14. It is also contended by the defence, that if the weight of the stem is excluded, then the total weight of the seized contraband would come to less than the commercial quantity.
15. The definition of the word "Ganja" in the NDPS Act is as follows:
Definition: In this Act, unless the context otherwise requires:
(i)....
(ii)....
(iii) Cannabis (hemp) means-
a.
b. 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:
(c)....
16. It is observed by the Honourable High Court Bombay High Court in a decision reported in
12. A bare reading of the above definition would make it manifest that the seeds and the leaves are excluded from the operation of the definition of word "ganja" only when the same are not accompanied by the flowering tops or the fruiting tops. The report of the C.A. Reveals that greenish leaves, seeds and stalks were noticed at the time of analysis. Thus, when the leaves and seeds were accompanied by the fruiting tops then it will have to be said that the seized stock was of ganja.
17. The report Ex.P.1 given by the chemical analyst-P.W.1, is as follows:
Report: Each of the two(2) samples is in the form of dried parts of plant like flowering tops, seeds, leaves, stem etc.,. Each is Cannabis (Ganja) and covered under NDPS Act, 1985.
18. The first thing to be noted is that as per the report, apart from flowering top, seeds, leaves, stem was found in the samples. The definition of Ganja excludes the seeds and leaves when not accompanied by the tops. Therefore, when the Ganja is seized, with the flowering or fruiting tops, seeds and leaves, totally it has to be taken as Ganja. If the seeds and leaves are separate, not accompanied with the flowering or fruiting tops, they could not be termed as Ganja. This makes it clear that mainly the flowering or fruiting tops of the cannabis plant is a ganja. As far as the stem is concerned, it is doubtful whether it could be regarded as ganja. Normally, the plant includes stem and therefore the cannabis plant must be with stem and also with other parts such as flowering or fruiting tops, seeds and leaves. Therefore, when a cannabis plant is seized, if it contains flowering or fruiting tops, seeds and leaves being accompanied, it is not necessary to mention separately, it contains stem also. As mentioned above stem also is part of the plant. At the same time, like seeds and leaves, stem is not accompanying the flowering top and broken stem is available, it could not be termed as ganja. The stem may be long or short, normally it is long thin part of the plant.
19. This Court on seeing the M.O.4, found that the contraband which was seized about seven years back was dried up very much. Parts of broken stem also were found. It is not known, at the time of seizure whether the stems were accompanied by flowering tops or not. Of course ''accompany'' means ''be present'', ''along with'', but need not necessarily mean to be attached and not separated. At the same time, the question arises whether the stem also to be treated same as seeds and leaves accompanying flowering tops, as Ganja. Separated stem from cannabis plant and not attached with flowering top may be excluded while assessing the total weight of ganja.
20. This Court is to conclude that though the prosecution has established that contraband was ''ganja'', failed to establish that the total weight of the ganja seized was above 20 kgms.
21. For the above said reasons, the conviction and sentence imposed on the accused u/s 8(c) r/w 20(b)(ii)(c) is set aside, instead he is convicted u/s 8(c) r/w 20(b)(ii)(B) of NDPS Act, and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 50,000/- and in default of payment to undergo six months rigorous imprisonment.
22. In the result, the appeal is partly allowed.
23. It appears from the records that the appellant paid a fine amount of Rs. 1 lakh on 22.06.2007. From the said amount Rs. 50,000/- to be adjusted towards the fine imposed by this Court and the remaining amount of Rs. 50,000/- to be refunded to the appellant.
The jail authorities are directed to release the appellant forthwith unless he is required in connection with any other case.
