1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3435 OF 2010 1. Zohrabee W/o Anwar Khan Age : 50 years, Occ : Household, R/o Ganganagar, Nanded, Tq. & Dist. Nanded. 2. Sheikh Miyan S/o Sk. Lal Shah Age : 46 years, Occ : Labour, R/o Bilalnagar, Nanded ..APPLICANTS -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. P.V. Mandlik, Senior Counsel holding for Mr. A.S. Gandhi, Advocate for applicants. Mr. N.H. Borade, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 7th October, 2010. PER COURT : 1. This is an application for bail. The applicants are arrested in connection with Crime No. 17/2010 registered at Gramin Police Station, Nanded for the alleged offence punishable under Sections 20(1)(b) of the N.D.P.S. Act. 2. The prosecution case, in short, is that the Police received secrete information to the effect that the applicant no.1 was indulging in illegal storage and sale of Ganja in her residential house. Hence, the raid was arranged after calling two panchas 2 and the measurer. The police party members visited house municipal No. 9/04/1040 at about 12.38 hours on 18.03.2010. They came across two Gunny bags consisting of green leaves, plants and seeds of Ganja. It was found that the stock was of 22 Kg. 3. Learned Senior Advocate Mr. Mandlik would point out that the definition of expression `Ganja' as used in Section 2(b) of the N.D.P.S. Act does not include leaves, plants and seeds of the plants when not accompanying by flowering tops. The definition of word `Ganja' as per Section 2(b) is as follows : "Section 2(b): ganja, that is, the flowering of 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." 4. The learned A.P.P. submits that stock of Ganja was of 22 Kg and much above the prescribed limit, and therefore, was of commercial quantity. The entry at Sr. No.55 in the relevant notification under Table below sub-clause (viia) and (xxiiia) of Section 2 of the N.D.P.S. Act purports to show that for Ganja of 20 Kg is optimum limit and the stock of 20 Kg and above could be regarded as commercial quantity. 3 5. Perusal of Section 37(b) of the N.D.P.S. Act reveals that ordinarily, no person accused of an offence punishable under Section 19 or Section 24 or Section 27-A of the N.D.P.S. Act involving commercial quantity shall be released on bail. There is statutory prohibition in releasing such person on bail, if it is noticed that he was found in possession of commercial quantity of Narcotic drug or substance. 6. The recitals of the seizure panchanama, the F.I.R and other statements of witnesses, prima facie, indicate that the stock found in the gunny bags stored in the house of the applicant no.1 comprised of greenish coloured leaves, plants and seeds. The seizure panchanama and evidence does not prima facie show that the stock was of flowering tops. In other words, the applicants may be prima facie held guilty of the offences for which grant of bail is prohibited under Section 37(b) of the N.D.P.S. Act. These are the observations made on prima facie evaluation of record and may not be considered at the time of final disposal of special case. Still, however, once it is found that the applicants are not covered by Section 37(b) of the N.D.P.S. Act then they may be granted bail. It is pertinent to notice that the applicant no.1 is woman and the applicant no.2 is not the person to whom the ownership of the 4 house could be attributed nor there is any secrete information received against him as stockist or seller of Ganja. Consequently, both of them deserve liberty during the pendency of the trial. 7. In the result, the application is allowed. The applicants are directed to be released on bail, on furnishing Bail Bond in the sum of Rs. 20,000/- ( Rupees Twenty Thousand) each with one solvent security bond to the satisfaction of the Court of Sessions, Nanded and on further condition that they shall not make any attempt to tamper with the prosecution witnesses. (V.R.KINGAONKAR) JUDGE gas/cri3435.10