# Jai Prakash @ Banti v. State of U.P - **Citation:** (2016) 3 ILRA 1 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-15 - **Bench:** Karuna Nand Bajpayee - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-banti-v-state-of-u-p-43498 - **Pages:** 4 ## Headnote Criminal Law - N.D.P.S. Act, 1985 - Sections 2(iii) (b), 2(iii)(c), 2(xiv), 8, 20 - Mixture of Ganja and Bhang - Notification S.O. 2941(E) dated 18.11.2009 - Large recovery - Bail - Considerations. Bail application for offence under Section 8/20 N.D.P.S. Act - Recovery of 5 quintals and 1 kg of contraband contained in 18 bags - Chemical examiner's report showed mixture of Ganja and Bhang - Contention that percentage of Ganja was not specified - Held, immaterial in view of Central Government Notification S.O. 2941(E) dated 18.11.2009 (Para 5-9) Ganja is one of the species of cannabis (hemp) defined under Section 2(iii)(b) of the N.D.P.S. Act and that a mixture of any of the forms of cannabis (hemp), with or without any neutral material, also finds place within the definition under Section 2(iii)(c). It was further held that in view of Notification No. S.O. 2941(E) dated 18.11.2009, the percentage of any narcotic drug in a mixture has become immaterial and the entire quantity of the mixture is decisive for constituting the offence. The total contraband recovered was 5 quintals and 1 kilogram contained in 18 bags, which is a huge quantity, and there was no material on record to substantiate the plea of false implication or to suggest that such an enormous quantity could have been planted. The chemical examiner's report clearly showed the contraband to be a mixture of ganja and bhang. Held Paras (8-9) No evidence that such enormous quantity could be planted - Gravity of offence, statutory scheme and factual matrix - Bail rejected. Bail application rejected. Case Law discussed: ## Text 3 All. Jai Prakash @ Banti Vs. State of U.P. 1 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.02.2016 BEFORE THE HON'BLE KARUNA NAND BAJPAYEE, J. Criminal Misc. Bail Application No.-18625 of 2014 Jai Prakash @ Banti ...Applicant Versus State of U.P ...Opposite Party Counsel for the Applicant: Ashok Kumar Srivastava Counsel for the Opposite Party: Govt. Advocate Criminal Law - N.D.P.S. Act, 1985 - Sections 2(iii) (b), 2(iii)(c), 2(xiv), 8, 20 - Mixture of Ganja and Bhang - Notification S.O. 2941(E) dated 18.11.2009 - Large recovery - Bail - Considerations. Bail application for offence under Section 8/20 N.D.P.S. Act - Recovery of 5 quintals and 1 kg of contraband contained in 18 bags - Chemical examiner's report showed mixture of Ganja and Bhang - Contention that percentage of Ganja was not specified - Held, immaterial in view of Central Government Notification S.O. 2941(E) dated 18.11.2009 (Para 5-9) Ganja is one of the species of cannabis (hemp) defined under Section 2(iii)(b) of the N.D.P.S. Act and that a mixture of any of the forms of cannabis (hemp), with or without any neutral material, also finds place within the definition under Section 2(iii)(c). It was further held that in view of Notification No. S.O. 2941(E) dated 18.11.2009, the percentage of any narcotic drug in a mixture has become immaterial and the entire quantity of the mixture is decisive for constituting the offence. The total contraband recovered was 5 quintals and 1 kilogram contained in 18 bags, which is a huge quantity, and there was no material on record to substantiate the plea of false implication or to suggest that such an enormous quantity could have been planted. The chemical examiner's report clearly showed the contraband to be a mixture of ganja and bhang. Held Paras (8-9) No evidence that such enormous quantity could be planted - Gravity of offence, statutory scheme and factual matrix - Bail rejected. Bail application rejected. Case Law discussed: (Delivered by Hon'ble Karuna Nand Bajpayee, J.) 1. Counter affidavit filed on behalf of the State today is taken on record. 2 INDIAN LAW REPORTS ALLAHABAD SERIES 2. This application has been filed seeking the release of the applicant on bail in Case Crime No. 405 of 2013, u/s 8/20 N.D.P.S. Act (hereinafter referred as 'the Act'), Police Station- Kachwa, District - Mirzapur. 3. Heard learned counsel for the applicant and learned A.G.A. 4. Perused the record. 5. Submission of counsel for the applicant is that there is some background of unhappy relationship in between the police and the applicant and therefore, the applicant has been falsely implicated in the case. Another submission is that the chemical examiner's report shows that there is mixture of Ganja and Bhang in the contraband and does not suggest percentage of Ganja therein and therefore, it cannot be said that the whole recovered contraband was Ganja. Further submission of the counsel is that co-accused Shiv Shankar Jaiswal and Kailash Pal have already been granted bail by another Benches of this Court on 29.1.2015 and 21.8.2014 and therefore, the applicant should also be released on bail. 6.Learned A.G.A. has opposed the prayer for bail and has submitted that the total amount recovered from the applicant's possession is 5 quintals and one kilogram and that the hugeness of recovery of contraband by itself is sufficient to indicate the genuineness of the same and it cannot be said that for the purposes of false implication such huge amount of contraband has been planted by the police as no such material to substantiate the motive of false implication has been brought on record by the applicant as has been suggested by the counsel. So far as the submission with regard to bail granted to the co-accused Shiv Shankar Jaiswal and Kailash Pal is concerned, it has been pointed out that those two persons were never arrested on the spot and it was placed before the Court that their complicity in the crime has surfaced on the basis of confessional statement of co-accused while the applicant is the person, who was arrested on the spot along with the enormous contraband material and therefore, there is absolutely no parity in between the applicant and the co-accused, who have been released on bail. It has been further submitted that there is no requirement in law to fix the percentage of contraband in the sample in view of the notification of Central Government (Notification No. S.O. 2941 (E), dated 18.11.2009) whereby the Central Government has declared that in case of mixture or preparation with or without any neutral substance, the entire quantity of mixture/preparation shall be decisive to constitute the offence under Narcotic Drugs/Psychotropic Substances Act. Learned A.G.A. has also pointed out the definition of Section 2 (iii)(b) and (c) of the Act, 1985 in order to show that Ganja and any mixture thereof falls within the definition of cannabis (hemp). 7. Considering the rival submissions made by the parties at the Bar, it may be seen that the Ganja is one of species of cannabis (hemp) and has been defined in Section 2 (iii) (b) of the Act as given in the definition clause of the Act. A mixture of any of the forms of cannabis (hemp), with or without any neutral material, also finds place within the said definition under sub-section (c) of Section 2 (iii) of the Act. The Act also defines "Narcotic Drug" in sub-section (xiv) of Section 2 which provides that Narcotic Drugs means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. It may also be 3 All. Jai Prakash @ Banti Vs. State of U.P. 3 seen that Section 8 of the Act prohibits the possession and selling of any Narcotic Drug or Psychotropic Substance along with prohibition to other operations like production, manufacturing, purchase, transport, warehousing, use etc. except for medical and scientific purposes and manner or the rules or the order made thereunder. Likewise, it may be also seen that the percentage of any Narcotic Drug or Psychotropic Substance in any mixture or any solution has become immaterial in view of the Notification No. S.O. 2941 (E), dated 18.11.2009, which is quoted herein below:- MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 18th November, 2009 S.O. 2941 (E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055 (E) dated 19th October, 2001, namely :- In the Table at the end after Note 3, the following Note shall be inserted namely:- "(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply in the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form of isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence of such substances is possible and not just its pure drug content. [F.No. 662/33/2008-nc-1] Vimla Bakshi, Under Secy." 8. Reverting back to the facts of the case in hand, it is not disputed that the total quantity of the contraband recovered is 5 quintal and 01 kg. contained in total 18 bags which is a huge quantity indeed. It is also not in dispute on the basis of record that the chemical examiner's report mentions the result of chemical examination of 18 different samples collected by the investigating officer from those bags as a mixture of Ganja and Bhang. It is also clear from the record that as per prosecution version, the coaccused Shiv Shankar Jaiswal and Kailash Pal were not arrested on the spot but the applicant was arrested on the spot along with contraband and hence, in view of the above noted statutory provisions and looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case and the enormity of the recovered contraband, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected. 4 INDIAN LAW REPORTS ALLAHABAD SERIES 9. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.02.2016 BEFORE THE HON'BLE TARUN AGARWALA, J. THE HON'BLE VINOD KUMAR MISRA, J. Central Excise Appeal No. 316 of 2010 M/s Triveni Engineering & Industries Ltd. ...Appellant Versus Commissioner of Central Excise, Allahabad ...Respondent Counsel for the Appellant: Sri Nishant Mishra Counsel for the Respondent: Sri Siddharth Shukla Central Excise Act, 1944 - Sections 11-A, 11-AC - Central Excise Rules, 2002 - Rule 25 - Molasses - Excess stock - Presumption of clandestine manufacture - Requirements of corroborative evidence - Burden of proof - Limitation - Extended period - Penalty 1. Excess molasses found on dip-reading cannot, by itself, establish clandestine manufacture of sugar. Molasses is a volatile by-product whose volume increases due to temperature, foaming, chemical reaction and ingress of sprayed/rain water. Dip-reading is only an estimated measurement. Hence, increase in volume after closure of the factory cannot give rise to a presumption of clandestine production. (Paras 8-12) 2. Charge of clandestine removal requires clinching evidence, such as purchase of extra sugarcane, excess electricity consumption, production of unaccounted sugar and its removal/sale. No such investigation was made. Mere assumptions and conjectures cannot sustain duty demand. (Paras 1215) 3. Where the Tribunal itself records that there was no suppression or misstatement, the extended period under Section 11-A is not available. Consequently, penalty under Section 11-AC also cannot be levied. (Paras 16-18) Held (Paras 15, 19-20): Demand of duty, interest and penalty, being based solely on presumption arising out of excess molasses stock, is unsustainable in law. Orders of the authorities and of the Tribunal are quashed. Appeal allowed. Case Law discussed: 1. Continental Cement Co. v. Union of India, 2014 (309) ELT 411 (All.)-[Para 14]