Rajasthan High Court – Jodhpur
Saka Ram vs State Of Rajasthan (2025:Rj-Jd:32424) on 23 July, 2025
[2025:RJ-JD:32424]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8313/2025
Saka Ram S/o Rupa Ram, Aged About 58 Years, Resident Of
Bhagwa, Police Station Siwana, Tehsil Siwana, District Balotra,
Rajasthan. (At Present Lodged In District Jail Jalore)
----Petitioner
Versus
State Of Rajasthan, Through The Public Prosecutor.
----Respondent
For Petitioner(s) : Mr. Deepak Menaria.
For Respondent(s) : Mr. Hanuman Prajapati, PP.
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
23/07/2025
1. This application for bail under Section 483 of BNSS (Section
439 Cr.P.C.) has been filed by the petitioner, who has been
arrested in connection with F.I.R. No.21/2025, registered at Police
Station Bishangarh, District Jalore, for the offences under Sections
2. Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
3. Learned counsel for the petitioner submits that the petitioner
is merely a helper and that the opium poppy plants were being
cultivated on agricultural land belonging to one Masra Ram, which
was being cultivated by Jagdish.
4. Learned counsel further submits that the Coordinate Benches
of this Court in the case of Valaram Vs. State of Rajasthan,
passed in SBCRLMB Nos.5293/2024 and in case of Sohan Singh
(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (2 of 7) [CRLMB-8313/2025]
vs. State of Rajasthan, passed in SBCRLMB Nos.2687/2025,
while taking into consideration Section 18 of the NDPS Act, have
held that in such cases, rigors of Section 37 of the NDPS Act does
not apply. The relevant portion of said orders are reproduced as
under:
“In SBCRLMB No.2687/2025, order dated 04.03.2025:-
“xxxxxx 7. This Court is conscious of the S.O. 1055 (E) dated
19.10.2001 published in the Gazette of India, Extra., Pt.II Section
3(ii) dated 19.10.2001 and Note no.3 appended to the table thereto,
which provides :
“3. “Small Quantity” and “Commercial Quantity” with
respect to cultivation of opium poppy is not specified separately as
the offence in this regard is covered under clause (c) of section 18
of the Narcotic Drugs and Psychotropic Substances Act, 1985.”
8. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that
since the offence in the present case is not punishable under
Sections 19, 24 and 27A and neither any commercial quantity
has been prescribed for the cultivation of poppy plants as per
the notification as stated above; and particularly since the
prosecution has not shown any apprehension of the petitioners
tampering with the evidence or involving themselves in cases of
similar nature in case they are enlarged on bail, therefore the
embargo contained in Section 37 is not applicable in the
present case. Thus, without expressing any opinion on
merits/demerits of the case, this Court is inclined to enlarge the
petitioners on bail. Xxxxxxxx”
In SBCRLMB No.5293/2024, order dated 01.05.2024:-
“xxxxxx 5. It is the case of the prosecution that upon receiving
a secret information when the police party reached at the
agricultural field of the petitioner Vala Ram it was found that
some plants of the species of papaver, Somnife rum-L
commonly known as opium poppy were cultivated in
betweenrdSimilar consideration in detail has been made by this
Court in the case of Vinod Kumar Vs. State of Rajasthan bail
application being SBCRLMB No.9279/2022 decided on 07.07.2022.
The para Nos. 4 & 5 are reproduced here under: –
“4. Heard learned counsel for the parties. Perused the
material available on record. i) The case of the prosecution is
that the petitioner was cultivating ganja plants in his field and
the quantity of the recovered plants is well above the
commercial limit specified for contraband ganja. Section 2 of
the NDPS Act contains the definitions and clause (iii) of the
same defines what “cannabis (hemp)” means, through three sub-
clauses. The sub-clause (b) of clause (iii) defines ‘ganja’ as”the
flowering or fruiting tops of the cannabis plant (excluding the(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (3 of 7) [CRLMB-8313/2025]seeds and leaves when not accompanied by the tops), by
whatever name they may be known or designated”. Sub-clause
(vii a) of Section 2 of the N.D.P.S. Act defines “commercial
quantity” as any quantity greater than the quantity specified by
the Central Government by notification in the Official Gazette,
in relation to narcotic drugs and psychotropic substances. The
notification in effect that specifies small and commercial
quantity for narcotic drugs and psychotropic substances is S.O.
1055 (E) dated 19thOctober, 2001 published in the Gazette of
India, Extra., Pt. II Sec.3(ii) dated 19th October, 2001and the
commercial quantity specified therein for ganja is 20 kgs. ii) As
averred, for the purpose of determining the total weight of the
recovered contraband ganja, the whole plants were taken into
consideration, including the seeds, roots, stems and leaves,
alongwith the soil as well whereas only the flowering or fruiting
tops of the cannabis plants should have been taken for weighing
of contraband ganja as per the defining clause under N.D.P.S.
Act. As there was no bifurcation of seeds and leaves from the
flowering or fruiting tops before weighing the recovered
contraband and the total weight of the recovered contraband is
just 2 kgs and 700 gms above the commercial quantity, 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. iii) The cultivation of “any cannabis plant”
is prohibited and made an offence under sub clause (b)of
Section 8 of the N.D.P.S. Act. Further, it is imperative to
mention Section 20 of the N.D.P.S. Act, which discusses the
punishment for contravention in relation to cannabis plant and
cannabis. Section 20 of the N.D.P.S. Act reads as follows: 20.
Punishment for contravention in relation to cannabis plant and
cannabis.-Whoever, in contravention of any provision 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; and (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. Contravention of
provisions of the N.D.P.S. Act by cultivation of any cannabis
plant is covered in clause (a) of Section 20 and contravention by
production, manufacture, possession, sale, purchase,
transportation, import inter-state, export inter-state or use of
cannabis is covered under clause (b) of Section 20. For the
contravention contained in clause (b), punishments have been
particularised as per the quantities, namely small, intermediate
and commercial quantities in sub-clause (i) but for the
contravention contained in clause (a), maximum punishment for
(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (4 of 7) [CRLMB-8313/2025]
a term of ten years rigorous imprisonment 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).iv)
Grant of bail for offences stipulated in the N.D.P.S. Act is
interdicted by the provisions of Section37. Section 37 states that
any person who is accused of an offence under Sections 19, 24
or27A and of an offence involving commercial quantity cannot
be granted bail. Neither the offence in the present case is
covered by Sections 19, 24 or 27A of the N.D.P.S. Act and nor
does the recovered ganja fall in the category of commercial
quantity. Therefore, it can safely be inferred from the above
observations that the petitioner need not face the rigour of
Section 37 with regard to provision of bail in the present case. v)
This Court has passed a detailed order in S.B. Criminal Misc. IV
Bail Application No.2676/2022titled Kallu Nath v. State of
Rajasthan, wherein in a similar matter relating to cultivation of
opium poppy, bail was granted to the accused as the impediment
contained in Section 37 of N.D.P.S. Act was not attracted. 5.
Considering the arguments advanced by the counsel for the
parties, looking to the over all facts and circumstances of the
case and the dicta contained in the judgment passed in Kallu
Nath (supra), this court deems it just and proper to enlarge the
petitioner on bail.”
So also in the case of Kallu Nath Vs. State of Rajasthan being S.B.
Criminal Misc. IV Bail Appln. No.2676/2022 decided on 27.05.2022.
“4. Heard learned counsel for the parties. Perused the
material available on record. The case of the prosecution is that
the recovered contraband , i.e. opium poppy plants that were
being cultivated, qualify as contraband of commercial quantity.
Sub- clause (viia) of Section 2 of the NDPS Act defines
“commercial quantity” as any quantity greater than the quantity
specified by the Central Government by notification in the
Official Gazette, in relation to narcotic drugs and psychotropic
substances. 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 Note no. 3 appended to the notification “Note
3.- “small quantity” and “Commercial Quantity” with respect to
cultivation of opium poppy is not specified separately as the
offence in this regard is covered under clause (c) of section 18
of the Narcotic Drugs and Psychotropic Substances Act, 1985″.
As per the Notification, there is no defined amount for
cultivation of opium poppy that can be treated as either small or
commercial quantity. Section 18 of the NDPS Act, which
discusses the punishment for contravention in relation to opium
poppy and opium, prescribes punishment for small quantity in
sub-clause (a), for commercial quantity in sub-clause (b) andall
other cases are covered under sub-clause (c). The offence of
cultivation of opium poppy is prohibited under sub-clause (b) of
Section8. Thus, the corresponding punishment-prescribing
provision for offence under Section 8(b) would be Section 18(c).
Grant of bail for offences stipulated in the NDPS Act is
interdicted by the provisions of 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. The offence in the present case is not covered by
Sections 19, 24 or 27A and the commercial quantity for
cultivation of opium poppy is not defined. Therefore, it can be
(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (5 of 7) [CRLMB-8313/2025]
safely inferred from the above observations that the restriction
contained under Section 37 on provision of bail will not operate
in the present case. 5. Considering the observations made herein
above and looking to the possibility that the trial may take long
time to conclude, this court deems it just and proper to enlarge
the petitioner on bail. It is to be clear that the observations made
in the present order shall not influence the trial judge in any
manner and are limited to the justifiable disposal of this bail
application only.”
As considered above, in the given circumstances, the embargo of
Section 37 of the NDPS Act would not come in the way of granting bail to
the petitioner. xxxxxxxxx”
5. As per the Standing Order No.1055 (E) dated 19.10.2001
published in the Gazette of India, Extra., Pt.II Section 3(ii) dated
19.10.2001 and Note No.3 appended to the table thereto, it is
apparent that there is no commercial quantity prescribed for
cultivation of opium poppy plants. The same reads as under:
“3. “Small Quantity” and “Commercial Quantity” with respect to
cultivation of opium poppy is not specified separately as the offence in this
regard is covered under clause (c) of section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.”
6. It is further submitted by learned counsel for the petitioner
that the Investigating Officer has not completed the investigation
and consequently challan has not been filed yet; and the
petitioner is in judicial custody since 15.02.2025, and the
investigation/trial of the case is likely to take more time.
Therefore, the benefit of bail may be granted to the accused-
petitioner.
7. Per contra, the learned Public Prosecutor vehemently
opposed the bail application and submitted that the petitioner is
found cultivating the plants of opium poppy, which is prohibited
under the NDPS Act.
8. In the light of judicial reasoning laid down in Valaram and
Sohansingh (supra) it becomes evident that in cases involving
(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (6 of 7) [CRLMB-8313/2025]
cultivation of opium poppy, the absence of any prescribed quantity
under NDPS Act, renders the offence incapable of being classified
as involving either small or commercial quantity. Consequently,
the stringent condition under Section 37 of NDPS Act rendered
inapplicable, and the case falls to be considered outside the
statutory embargo, purely on the basis of settle legal
interpretation.
9. Having considered the rival submissions, the facts and
circumstances of the case, and the aforementioned rationale, the
challan has been filed and the trial is likely to take further time,
petitioner is in judicial custody since 15.02.2025 and without
expressing any opinion on the merits or demerits of the case, this
Court is inclined to enlarge the petitioner on bail.
10. Consequently, the instant bail application under Section 483
of BNSS (439 of Cr.P.C.) is allowed. It is ordered that the accused-
petitioner- Saka Ram S/o Rupa Ram, arrested in connection
with F.I.R. No.21/2025, registered at Police Station Bishangarh,
District Jalore, 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.
11. In case, the petitioner remains absent on any date of
hearing or makes an attempt to delay the trial by seeking
unnecessary adjournments, it shall be taken as a misuse of
concession of bail granted to him by this Court. The
(Downloaded on 30/07/2025 at 09:25:16 PM)
[2025:RJ-JD:32424] (7 of 7) [CRLMB-8313/2025]
prosecution, in such a situation, shall be at liberty to move
an application seeking cancellation of bail granted to the
petitioner today by this Court.
12. 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.
(MUKESH RAJPUROHIT),J
125-/Jitender//-
(Downloaded on 30/07/2025 at 09:25:16 PM)
Powered by TCPDF (www.tcpdf.org)