Holding

The seized material, being moist leafy and flowery parts accompanied by tops, falls within the definition of 'ganja' and its weight at seizure (including moisture) is the relevant measure, so the conviction and sentence are upheld.

Summary

Shiv Kumar Mishra was convicted under Section 20(b)(ii)(B) of the NDPS Act for possession of 1.31 kg of ganja and sentenced to three years' rigorous imprisonment. He appealed, arguing that the weight should exclude seeds, leaves, and moisture, which would reduce the quantity below the 1 kg threshold for a 'small quantity' and merit a lesser sentence. The High Court reduced the term to one year but the appellant sought further relief. The Supreme Court examined the definition of 'ganja' in Section 2(iii)(b) and held that seeds and leaves are included when accompanied by flowering tops, and that the Act does not require moisture to be excluded from the measured weight. Consequently, the weight at seizure (1.31 kg) is the relevant figure, and the conviction and sentence stand. The appeal was dismissed.

Issues considered

Whether seeds and leaves are excluded from the definition of 'ganja' under Section 2(iii)(b) of the NDPS Act when not accompanied by tops.
Whether the presence of flowering tops brings seeds and leaves within the definition of 'ganja' for weight calculation.
Whether moisture content must be excluded when ascertaining the weight of seized ganja for quantity classification.
Whether the weight of 1.31 kg classifies the seized substance as a 'small quantity' or a higher category affecting sentencing.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(B), s. 2(iii)(b)

Subjects

NDPS ActGanja definitionWeight measurementMoisture contentQuantity classificationDrug possession sentencingCriminal appeal

Judgment

(2009] 3 S.C.R. 559
"ff'

-· SHIV KUMAR MISHRA A
mt. v.
. STATE OF GOA THROUGH HOME SECRETARY
(Criminal Appeal No. 361 of 2009)

FEBRUARY 23, 2009
B
[Al TAMAS KABAIR AND CYRIAC JOSEPH, JJ.]
;<
Narcotic Drugs and Psychotropic Substances Act, 1985:

s.2(iii)(b) - 'Ganja' - Accused found in possession of c
1.31 kg of 'ganja' - Conviction by trial coult- Affirmed by High
Coult, but custodial sentence reduced from 3 years to 1 year
- HELD: From the evidence on record it has been
established that seized Ganja consisted of greenish brown
colour leafy and flowery palts of plant (in moist condition)
D
" which would fall under the definition of the expression "Ganja'.'
- Judgment and order passed by High Coult does not call
for any interference.

Ganja' - Weight - HELD: There is nothing in the NDPS
Act to suggest that when weight of a quantity of Ganja is to E

- >
be asceltained, the moisture content has to be separately
asceltained and excluded - On the other hand, weight of the
contraband would be the weight taken at the time of seizure.

CRIMINAL APPELLATE JURISDICTION : Criminal
,.... F
Appeal No. 361 of 2009.

From the final Judgment and Order dated 19.8.08 of the
High Court of Bombay & Goa at Panaji in Criminal Appeal No.
16 of 2007.

- )(
Zeba Khan, Madhumita Bora, S. Balaji and J.B. Ravi for
the Appellant.
G

The following Order of the Court was delivered:
559 H

-
560 SUPREME COURT REPORTS [2009] 3 S.C.R.

,_
A ORDER
\.
1. Leave granted.

2. The appellant was convicted under Section 20(b) (ii)(B)
of the Narcotic Drugs and Psychotropic Substances Act, 1985
B (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.

c 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
D 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
E
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 •
F seeds and leaves when not accompanied by the tops. It was
also submitted that the expert (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

-
G 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.

H 4. The High Court rejected the submission made on behalf

:-
SHIV KUMAR MISHRA v. STATE OF GOA 561
THROUGH HOME SECRETARY
of the appellant, but considering the quantity involved which was A
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
B
reducing the sentence from three years to one year, the
appellant has moved this Court for further relief.
" 6. In the present appeal, the same submission has been
advanced on behalf of the appellant.
c
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
~ D
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 E
order of the High Court reducing the period of sentence to one
year was erroneous since the seized Ganja would be less thari
> 1 Kg. and could not, therefore, be taken to comprise
commercial quantity.
....._ F
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 :- G
-· x
"'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;" H
562 SUPREME COURT REPORTS (2009] 3 S.C.R.

A 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
B considerably so as to exclude it from the definition of
commercial quantity and attract a much lesser sentence than
when the seized commodity was treated to be of commercial
quantity.

C 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
D 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
E 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.

12. We, therefore, see no reason to interfere with the
F judgment and order passed by the High Court and dismiss the
appeal accordingly.
RP. Appeal dismissed.