SHIV KUMAR MISHRA versus STATE OF GOA THROUGH HOME SECRETARY

Citation: [2009] 3 S.C.R. 559 · Decided: 23-02-2009 · Supreme Court of India · Bench: ALTAMAS KABIR, CYRIAC JOSEPH · Disposal: Dismissed

Judgment (excerpt)

(2009] 3 S.C.R. 559 
"ff' 
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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 
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HELD: From the evidence on record it has been 
established that seized Ganja consisted of greenish brown 
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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 
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asceltained and excluded - On the other hand, weight of the 
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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. 
G 
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)( 
Zeba Khan, Madhumita Bora, S. Balaji and J.B. Ravi for 
the Appellant. 
The following Order of the Court was delivered: 
559 
H 
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560 
SUPREME COURT REPORTS 
[2009] 3 S.C.R. 
A 
ORDER 
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1. Leave granted. 
\. 
2. The appellant was convicted under Section 20(b) (ii)(B) 
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. 
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 
E 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 
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F seeds and leaves when not accompanied by the tops. It was 
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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 
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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 
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appellant would deposit the fine in case the same has not been 
deposited. 
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4. The High Court rejected the submission made on behalf 
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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 f

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