Rajasthan High Court – Jodhpur
Deva vs State Of Rajasthan (2025:Rj-Jd:13676) on 11 March, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:13676]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 2989/2025
Deva S/o Punjiya, Aged About 41 Years, R/o Richa Fala
Machiaiya Police Station Nithaua District Dungarpur Rajasthan
(Lodged In Dist Sub Jail Sagwara)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Shiv Singh for
Mr. Tanwar Singh Rathore
For Respondent(s) : Mr. Shrawan Singh Rathore, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
11/03/2025
This application for bail under Section 439 Cr.P.C. has been
filed by the petitioner who has been arrested in connection with
F.I.R. No.23/2025 registered at Police Station Nithuwa district
Dungarpur, for the offence under Sections 8/20 of NDPS.
2. As per the prosecution, acting upon a secret information, a
team of Police Station Nithuwa raided the field belonging to the
present petitioner situated adjacent to his house and found ganja
plants growing therein. The petitioner was arrested on the spot.
3. Learned counsel for the petitioner contended that the
petitioner has been falsely implicated in the present case. Learned
counsel submitted that the recovery of the contraband was of
ganja plants growing on the agricultural field, thus, conscious
possession of the petitioner cannot be deduced. It was also
submitted that as the whole plants were weighed without
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removing the stems, roots, leaves etc., the said recovery amounts
to an offence under section 20 (a) of NDPS act for which no
commercial quantity has been prescribed. Therefore, the embargo
contained under Section 37 would not be attracted.
4. Lastly, learned counsel for the petitioner submitted that the
petitioner is in judicial custody; no case of similar nature is
pending against the petitioner; the trial of the case will take
sufficiently long time to conclude, therefore, the benefit of bail
may be granted to the accused-petitioner.
5. Per contra, learned Public Prosecutor has vehemently
opposed the bail application.
6. Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
7. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that the
case of the prosecution is that the petitioner was cultivating ganja
plants in his fields and the quantity of the recovered plants is well
above the commercial limit specified for contraband ganja.
8. The notification in effect that specifies small and commercial
quantity for narcotic drugs and psychotropic substances is S.O.
1055 (E) dated 19th October, 2001 published in the Gazette of
India, Extra., Pt. II Sec. 3 (ii) dated 19th October, 2001 and the
commercial quantity specified therein for ganja is 20 kgs. For the
purpose of determining the total weight of the recovered
contraband ganja in the present case, the whole plants were taken
into consideration, including the seeds, roots, stems and leaves,
along with the soil as well whereas only the flowering or fruiting
tops of the cannabis plants should have been taken for weighing
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of contraband ganja as per the defining clause under NDPS Act. As
there was no bifurcation of seeds and leaves from the flowering or
fruiting tops before weighing the recovered contraband. Thus, it is
safe to infer that the actual weight of recovered ganja would be
less than the claimed weight and therefore, below the stipulated
commercial quantity.
9. The cultivation of “any cannabis plant” is prohibited and
made an offence under sub-clause (b) of Section 8 of the NDPS
Act. Further, it is imperative to mention Section 20 of the NDPS
Act, which discusses the punishment for contravention in relation
to cannabis plant and cannabis. Section 20 of the NDPS Act reads
as follows:-
“20. Punishment for contravention in relation to cannabis plant
and cannabis.-
Whoever, in contravention of any provisions of this Act or any rule
or order made or condition of licence granted thereunder,-
(a)cultivates any cannabis plant; or
(b)produces, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses
cannabis, shall be punishable-
(i)where such contravention relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years and shall
also be liable to fine which may extend to one lakh rupees
(ii)where such contravention relates to sub-clause (b),–
(A) and involves small quantity, with rigorous imprisonment for a
term which may extend to one year, or with fine, which may
extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but
greater than small quantity, with rigorous imprisonment for a term
which may extend to ten years and with fine which may extend to
one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment
for a term which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend to two
lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.”
10. On a perusal of Section 20 of the NDPS Act, this Court finds
that contravention of provision of the NDPS Act by cultivation of
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any cannabis plant is covered in clause (a) of Section 20 and the
maximum punishment for contravention of clause (a) of Section
20 is of a term of ten years rigorous imprisonment which has been
prescribed without any specification of quantities. Thus, the
corresponding punishment-prescribing provision for offence under
Section 8(b), relating to cannabis plant, would be Section 20(a)(i).
11. Grant of bail for offences stipulated in the NDPS Act is
prohibited by the provision contained under Section 37. Section 37
states that any person who is accused of an offence under
Sections 19, 24 or 27A and of an offence involving commercial
quantity cannot be granted bail. In the present case, neither the
offence in the present case is covered by Sections 19, 24 or 27A
of the NDPS Act and nor does the recovered ganja falls under the
category of commercial quantity. Therefore, it can safely be
inferred from the above observations that the petitioner need not
face the rigors of Section 37 with regard to provision of bail. A co-
ordinate Bench of this Court has passed a detailed order in the
case of Kallu Nath v. State of Rajasthan (S.B. Criminal Misc.
IV Bail Application No.2676/2022), wherein in a similar
matter relating to cultivation of opium poppy, bail was granted to
the accused as the embargo contained in Section 37 of NDPS Act
was not attracted.
12. Thus, without expressing any opinion on merits/demerits of
the case and keeping in mind the dicta contained in the judgment
passed in Kallu Nath (supra), this Court is of the opinion that
the bail application filed by the petitioner deserves to be accepted.
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13. Consequently, the bail application under Section 439
Cr.P.C. is allowed. It is ordered that the accused-petitioner Deva
S/o Punjiya arrested in connection with F.I.R. No.23/2025
registered at Police Station Nithuwa district Dungarpur, shall be
released on bail, if not wanted in any other case, provided he
furnishes a personal bond of Rs.1,00,000/- and two sureties of
Rs.50,000/- each, to the satisfaction of learned trial court, for his
appearance before that court on each & every date of hearing and
whenever called upon to do so till completion of the trial.
14. It is however, made clear that findings recorded/observations
made above are for limited purposes of adjudication of bail
application. The trial court shall not get prejudiced by the same.
(KULDEEP MATHUR),J
296-mohit/-
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