NDPS | Seeds and Leaves Not Ganja Unless Accompanied by Tops: Gujarat High Court

"Under Section 2(iii)(b) of the NDPS Act, seeds and leaves are excluded from the definition of ganja unless accompanied by flowering or fruiting tops" – In a significant ruling Gujarat High Court dismissed a State appeal seeking enhancement of sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), holding that the quantity of ganja allegedly seized could not be reliably said to exceed the 'small quantity' threshold due to the inclusion of seeds and leaves, which are not part of the statutory definition of ganja unless accompanied by flowering tops.

The Court, presided over by Justice Gita Gopi, declined to interfere with the trial court’s sentence of one year rigorous imprisonment and ₹15,000 fine imposed on the respondent, Yunus @ Tamtam Satarbhai Kerun Arab, despite the prosecution’s attempt to invoke Section 377 of the CrPC to argue the sentence was inadequate.

“No Proof That Seized Material Was Exclusively Flowering Tops”: Prosecution Failed to Establish Offence Involving Intermediate Quantity

The crux of the High Court’s refusal to enhance the sentence lay in the prosecution’s failure to prove that the seized contraband—allegedly 1.7 kg of ganja—excluded seeds and leaves, which are not counted towards the narcotic weight unless accompanied by flowering or fruiting tops.

The Court extensively examined Section 2(iii)(b) of the NDPS Act, which defines ganja as: “...the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops)...”

The FSL (Forensic Science Laboratory) Report confirmed the presence of female flowering tops, but also noted the inclusion of seeds and leaves, raising questions about the actual net narcotic content. Importantly, none of the prosecution witnesses, nor the panchnama, clearly segregated or excluded seeds and leaves during weighing.

Justice Gopi observed:

“The seized article would be considered as not weighed excluding the seeds and leaves, where the witnesses had not observed or recorded any flowering or fruiting tops in the panchnama.” [Para 17]

Thus, the prosecution’s claim that the total seized amount constituted intermediate quantity (1.7 kg) was legally unsustainable, and enhancement of sentence was not warranted.

“No Grounds to Interfere With Sentencing Discretion Under Section 377 CrPC”

The State, through APP Ms. Monali Bhatt, invoked Section 377 of the Code of Criminal Procedure, which permits the State Government to appeal against inadequacy of sentence.

However, the High Court, after considering precedents including Bed Raj v. State of U.P. and Soman v. State of Kerala, reiterated the principle that sentencing is a matter of judicial discretion, and appellate interference should be rare, only justified by “very strong reasons”.

Quoting Bed Raj, the Court said:

“When discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of the accused person except for very strong reasons, which must be disclosed on the face of judgment.” [Para 3.1]

Here, the respondent had already undergone one year and thirteen days in prison and paid the imposed fine. Given the evidentiary shortcomings and the trial court’s balanced approach, the High Court found no reason to enhance the sentence.

Possession Not Proven Beyond Doubt – Seizure From Under-Construction House With Multiple Occupants

A key part of the Court’s analysis dealt with the issue of conscious possession, which is crucial for establishing liability under the NDPS Act.

The seizure occurred at a property under renovation, with multiple labourers present. The contraband was found in part under a mattress and in part inside an aluminum box in a room.

The Court found that while the packet found under the mattress could be linked to the respondent, the contents of the aluminum box, located in a common area, could not be conclusively attributed to him:

“Possession and custody of the prohibited material found in the white aluminum box… could not be said to be proved as in the actual custody of the present appellant.” [Para 21]

Moreover, the respondent had explained that the house belonged to his father, and he was present merely to oversee construction work. This plausible explanation and the failure to examine the labourers as witnesses cast reasonable doubt on the exclusive possession requirement.

Hostile Witnesses and Lack of Corroboration: Panchas Fail to Support Prosecution

Both panch witnesses turned hostile, and the independent corroboration of the seizure was absent. The Court gave due consideration to this evidentiary lapse.

“The Panch – Bhupatgar Mojgar had not supported the Panchnama… Even the another Panch – Jignesh Chandubhai Tank examined as PW3 has not supported the prosecution case of raid.” [Para 11]

This further weakened the State’s case for seeking enhancement of the sentence.

Consumption Charge Sustainably Proven – But Enhancing Punishment Not Justified

While convicting the respondent under Sections 20(B), 25, 27, 8, and 29(1) of the NDPS Act, the trial court treated the possession as consistent with consumption-level offence, considering the lack of sale evidence, intermediary quantity, and disputed possession.

The High Court upheld this analysis, especially in light of Section 27 of the NDPS Act, which provides for lesser punishment for consumption, and emphasized:

“The prosecution has not proved any case for enhancement of the sentence… the punishment and the sentence imposed is appropriate and is consistent with the evidence on record.” [Para 23]

The Gujarat High Court’s judgment underscores several key principles in NDPS jurisprudence:

• Seeds and leaves are not part of "ganja" unless accompanied by flowering tops, as per statutory definition.

• Expert reports must align with physical evidence and panchnamas to sustain higher sentencing under the NDPS Act.

• Sentencing discretion exercised by trial courts should not be disturbed lightly, especially where the accused has already served substantial imprisonment and no aggravating factors are present.

• Possession must be proven beyond reasonable doubt, especially where multiple persons share access to the premises.

This decision sets a precedent for careful evaluation of the nature and weight of narcotic substances, reinforcing the importance of procedural rigor and fair trial standards in drug-related offences.

Date of Decision: 29 September 2025