Case Title:
Shiv Kumar Mishra v. State of Goa
Date of Order:
February 23, 2009
Bench:
Justice Altamas Kabir and Justice Cyriac Joseph
Parties:
Shiv Kumar Shukla (Appellant) & State of Goa (Respondent)
Subject
An appeal was filed before the Hon’ble Supreme Court against the orders of the Hon’ble Goa High Court, requesting that the punishment of the appellant should be reduced depending upon the quantity of ganja after excluding the moisture content.
Important provisions
Narcotics Drugs and Psychotropic Substances Act, 1985
Overview
- The appellant, in this case, was found in possession of 1.61 kg of ‘ganja’ on 9th December 2004 however, its weight was reduced to 1.595 kg along with a jute bag and plastic carrying bag on 15th December 2004.
- The weight of ganja without the jute bag and the plastic carrying bag was 1.31 kg.
- An appeal was filed in the Hon’ble High Court where the appellant contended that if the moisture content of seized ganja is excluded from the total weight seized, then the final weight of the contraband would be less than 1 kg.
- The punishment for the weight of less than 1 kg of ganja would be for a term of imprisonment which could extend to 6 months or a fine, extending up to Rs. 10,000, or with both.
Issues Raised
- Whether or not the expression ‘ganja’ as defined under Section 2 (i) (b) of the NDPS Act includes seeds and leaves when not accompanied by the tops?
Contentions Made by the Appellant
- The appellant contended before the Hon’ble Court that if the moisture content of seized ganja is excluded then the final weight of the contraband would be less than 1 kg.
- The punishment then, for the weight of less than 1 kg of ganja as per NDPS Act would be for a term of imprisonment which could extend to 6 months or fine, extending up to Rs. 10,000, or with both, which would be less than the punishment which could be otherwise granted.
- It was also contended by the appellant that Section 2 (iii) (b) of the NDPS Act, does not include seeds and leaves when it is not accompanied by the tops and hence, the expert had did not correctly specify the weight of the flowery part and the leaves separately.
Section 2 (iii) (b) of the NDPS Act defines "Ganja" as
“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;”
- The appellant, however, requested the Hon’ble High Court that since he had already undergone 2 months and 6 days of the sentence and he assured that he will deposit the fine the appeal should be considered to reduce the punishment.
- The Hon’ble High Court rejected the submissions made but taking into consideration the quantity of ganja which was a bit more than 1 kg it reduced the sentence from three years of rigorous imprisonment to one year of rigorous imprisonment but the fine was not reduced by the Hon’ble Court.
Judgment Analysis
- The Hon’ble Supreme Court observed that the arguments made by the counsel on behalf of the appellant were not convincing because of the facts and evidence on record.
- As per the evidence, the seized ganja consisted of greenish-brown colour leafy and flowery parts of the plant, in moist conditions, which according to the definition of the expression ‘ganja’, under the respective Section would include the seeds and leaves of the cannabis plant.
- The Hon’ble Court additionally observed that there is nothing in NDPS Act like the exclusion of the moisture content of seized ganja while determining the weight of the quantity of ganja seized. Nowhere is it mentioned in the Act that the moisture content needs to be separately excluded and then the ganja must be separately weighed.
- Therefore, the Hon’ble Supreme Court held that the weight of the contraband needs to be ascertained at the time of seizure and that the same weight will be taken into consideration. The Hon’ble Court thus dismissed the appeal stating that it found no merit in the appeal.
Conclusion
The Acts such as NDPS Act have been enacted so as to stop or reduce the illegal import and export of plant products that must be used for medicinal purposes but instead are used for other illicit purposes. If the contentions will be made before the courts, challenging the statutory provisions, their main agenda would not be met with. Finding loopholes in the statutes is the very basic job of the counsel but that many times leads to something devastating in a long run.
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