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Shiv Kumar Mishra v. State Of Goa Through Home Secretary .
Factual and Procedural Background
The appellant was found in possession of 1.61 kg of ganja on 09-12-2004. When the ganja alone (excluding a jute and a plastic bag) was weighed, it measured 1.31 kg. He was convicted by the trial court under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and sentenced to three years’ rigorous imprisonment with a fine of ₹30,000 (three months’ simple imprisonment in default).
On appeal, the High Court dismissed the appellant’s contention that, after deducting moisture, seeds and leaves, the net contraband would weigh less than 1 kg, but it reduced the custodial sentence to one year while leaving the fine intact. Unsatisfied, the appellant approached the Supreme Court seeking further reduction. The State did not appear despite notice, and the Supreme Court decided the matter ex parte.
Legal Issues Presented
- Whether, in light of Section 2(iii)(b) of the NDPS Act, the seeds and leaves of cannabis should be excluded from the weight of the seized substance when they are allegedly not accompanied by flowering or fruiting tops.
- Whether the moisture content of ganja must be excluded when determining its weight for the purpose of sentencing under the NDPS Act.
- Consequently, whether the quantity actually possessed by the appellant falls below the 1 kg threshold for a “small quantity”, thereby attracting a substantially lesser punishment.
Arguments of the Parties
Appellant’s Arguments
- Under Section 2(iii)(b) “ganja” excludes seeds and leaves when they are not accompanied by flowering or fruiting tops; therefore, those parts should not have been included in the weight calculation.
- If seeds, leaves and moisture were excluded, the remaining ganja would weigh less than 1 kg, attracting only the lesser penalty prescribed for a “small quantity” (maximum six months’ imprisonment or a fine up to ₹10,000).
- The High Court erred in imposing a one-year sentence because, properly weighed, the contraband did not exceed the statutory “small quantity” limit.
State/Respondent’s Arguments
The State did not appear to contest the appeal; no arguments are recorded.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
1. Inclusion of seeds and leaves. The Court held that the seized material consisted of “greenish-brown coloured leafy and flowery parts” of the cannabis plant. Because flowering parts were present, seeds and leaves are, by statutory definition, part of “ganja” and must be included in the weight. The appellant’s reliance on the exclusionary clause in Section 2(iii)(b) therefore failed.
2. Moisture content. The NDPS Act contains no provision directing that moisture be deducted when weighing contraband. The Court concluded that the relevant weight is the weight recorded at the time of seizure.
3. Net quantity and sentence. Given that both seeds/leaves and inherent moisture properly formed part of the contraband, the total quantity remained above 1 kg. The offence thus did not fall within the “small quantity” category. As the High Court had already exercised leniency by reducing the custodial sentence from three years to one year, there was no ground for further interference.
Holding and Implications
Appeal Dismissed—High Court judgment affirmed.
As a result, the appellant’s sentence remains one year of rigorous imprisonment and a fine of ₹30,000. The decision underscores that (a) seeds and leaves are counted toward the weight of ganja when flowering tops are present, and (b) the NDPS Act does not mandate deduction of moisture content in determining quantity. No new legal precedent was explicitly set, but the ruling clarifies practical aspects of weighing contraband under the NDPS Act.
Order
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 9-12-2004, the appellant was found in possession of 1.61 kg of ganja. Under the provisions of the NDPS Act, 1 kg of ganja has been defined to be “small quantity” and 20 kg and above has been defined as “commercial quantity”. When the seized ganja was analysed on 15-12-2004, the weight thereof together with jute bag and plastic carrying bag was found to be 1.595 kg. The ganja alone, without the jute bag and plastic carrying bag, weighed 1.31 kg.
4. 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.
5. It was also submitted that the expression “ganja”, as defined in Section 2(iii)(b) of the NDPS Act, does not include 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 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.
6. The High Court rejected the submission made on behalf 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.
7. 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.
8. In the present appeal, the same submission has been advanced on behalf of the appellant.
9. 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.
10. 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.
11. 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.
12. Section 2(iii)(b) of the NDPS Act defines “ganja” as follows:
“2. (iii)(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;”
13. 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 much lesser sentence than when the seized commodity was treated to be of commercial quantity.
14. 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 greenish-brown coloured 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.
15. 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.
16. We, therefore, see no reason to interfere with the judgment and order passed by the High Court and dismiss the appeal accordingly.
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