Bombay High Court
NILESH @ TUSHAR ASHOK BORSEversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
- Bench
- SHIVKUMAR DIGE
Holding
A heterogeneous mixture of cannabis leaves, seeds, stalks and stems does not fall within the definition of "ganja" under the NDPS Act, warranting the grant of bail.
Summary
The applicant, Nilesh @ Tushar Ashok Borse, was arrested in connection with the seizure of 101 kg 880 g of cannabis from a car intercepted by police on 18 March 2024. The prosecution alleged that the seized material constituted a commercial quantity of "ganja" under the NDPS Act, justifying denial of bail. The defence argued that the laboratory report identified the material as a heterogeneous mixture of leaves, seeds, stalks and stems, which does not meet the statutory definition of ganja limited to flowering or fruiting tops. The Court examined prior judgments holding that such mixtures cannot be treated as ganja for quantity calculations. Finding that the applicant had been in custody for over two years without trial progress and had no prior NDPS convictions, the Court granted regular bail subject to a bond and sureties. The order emphasized that the trial court must decide the case on its merits independently of the bail order.
Issues considered
- The applicability of the definition of "ganja" under Section 2(iii) of the NDPS Act to a heterogeneous mixture of cannabis parts.
- Whether the quantity seized constitutes a commercial quantity warranting denial of bail.
- Whether the applicant is entitled to bail given the delay in trial and lack of prior NDPS convictions.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(c), 29, 2(iii), 8(c)
Subjects
- bail
- NDPS Act
- ganja definition
- heterogeneous mixture
- quantity of drugs
- drug trafficking
Judgment
24-BA-557-2025 (CR) .doc
S.S.Kilaje
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 557 OF 2025
Nilesh @ Tushar Ashok Borse … Applicant
VERSUS
State Of Maharashtra … Respondent
_________________________________________________________________
Mr. Nadeem Khan i/b. Ms. Sadiya Khan, Advocate for the Applicant.
Mr. B. B. Kulkarni, APP for the Respondent – State.
SONALI by
Digitally signed
SONALI
SATISH Date:
SATISH KILAJE
KILAJE 14:41:44 +0700
2026.05.05 PSI – Mr. Mukteshwar Lad, N.D.P.S.Cell, Nashik City, present.
_________________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
DATE : 30th APRIL, 2026.
P.C. :
1. By this application, the Applicant is seeking regular bail in
Crime No. 60 of 2024 registered with Mhasrul Police Station, Nashik, for
the offences punishable under Sections 8(c), 20(c) and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ("NDPS Act").
2. It is prosecution’s case that on 18.03.2024, on secret
information, police intercepted a car. In search of the said car, police
found Ganja of total 101 kg 880 gm. The applicant and the co-accused
were occupants of the said car.
3. It is contention of learned counsel for the applicant that the
seized contraband was sent for analysis to CFSL and as per CFSL report,
the sample consisted of heterogeneous mixture of leaves, seeds, stalk and
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S.S.Kilaje
stems. It is submitted that such a mixture does not fall within the
definition of Ganja under Section 2(iii), which is restricted to flowering or
fruiting tops of the cannabis plant. It is submitted that this Court, in
various judgments, has held that heterogeneous mixture cannot be treated
as Ganja for the purpose of determining quantity and requested to allow
the application. He relied on :-
i. Ibrahim Khwaja Miya Sayyed @ Raju Vs. The State of Maharashtra
(B.A.No. 1296 of 2022);
ii. Mohammad Jakir Nawab Ali Vs. The State of Maharashtra (Criminal
Application (BA) No. 602 of 2024);
iii. Rahul Bhimrao Pawar Vs. The State of Maharashtra (B.A. No. 2977
of 2021);
iv. Suresh Maruti Pawar Vs. The State of Maharashtra (B.A.No. 1599 of
2020);
v. Hari Mahadu Valse Vs. The State of Maharashtra (B.A. 2299 of
2019);
vi. Chand Riyaz Shaikh s/o. Riyaz Shaikh Vs. The Union of India and
Anr.(B.A.No. 3269 of 2022).
4. It is contention of learned APP that commercial quantity of
Ganja has been seized in the car, of which applicant was occupant. The
seized contraband contains leaves, seed, stalks and stems, the same does
not dilute the prosecution’s case as the quantity recovered is substantial
and requested to reject the application. He relied on Shiv Kumar Mishra
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S.S.Kilaje
Vs. State of Goa1.
5. I have heard both the learned counsel. Perused chargesheet
and documents produced on record. The CFSL report shows that
heterogeneous mixture of Ganja was sent for the examination. This Court
(Coram: Smt. Anuja Prabhudessai, J.) has held that the heterogeneous
mixture cannot fall under the definition of “Ganja” under NDPS Act. The
applicant is behind the bars for more than two years and one month.
There is no progress in the trial. The applicant has no antecedents under
the NDPS Act and I pass following order :
ORDER
i. The applicant be enlarged on bail in C.R.No. 60 of
2024 registered with Mhasrul Police Station, Nashik,
on executing P.R.Bond of Rs. 30,000/- on furnishing
one or two sureties in the like amount.
ii. The applicant shall attend the concerned police station
as and when required.
iii. The applicant shall not tamper with the evidence or
attempt to influence or contact the complainant,
witnesses or any person concerned with the case.
6. The application is allowed in the aforesaid terms and is
1 (2009) 3 SCC 797
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S.S.Kilaje
accordingly disposed of. All pending applications, if any, disposed of.
7. It is made clear that the above observations are made only for
the purpose of granting bail and the Trial Court shall decide the case on its
own merits in accordance with law and uninfluenced by the observations
made in this order.
8. All concerned to act on the authenticated copy of this order.
(SHIVKUMAR DIGE, J.)
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