SHIV KUMAR MISHRA Vs. STATE OF GOA

JUDGEMENT

(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 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 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 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 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.