Rajasthan High Court – Jodhpur
Shanta vs State Of Rajasthan (2025:Rj-Jd:27658) on 20 June, 2025
Author: Farjand Ali
Bench: Farjand Ali
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 5136/2025
Shanta D/o Shri Narayan Lal, Aged About 36 Years, R/o Ward
No. 3 Village Gadri Khera, Mandal P.s. Mandal, Dist. Bhilwara,raj.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. T.R. Singh Sodha
For Respondent(s) : Mr. N.S. Chandawat, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
Reporatble
20/06/2025
1. The petitioner, apprehending arrest in connection with the
matter detailed below, which involves a non-bailable offence,
has approached this Court by invoking its jurisdiction under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita,
2023. The relevant particulars of the case are set out in the
table hereinbelow:-
S.No. Particulars of the Case 1. FIR Number 56/2025 2. Concerned Police Station Mandal 3. District Bhilwara 4. Offences alleged in the FIR Sections 8/16 & 8/18 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 21.04.2025 order (Downloaded on 04/07/2025 at 10:03:25 PM) [2025:RJ-JD:27658] (2 of 19) [CRLMB-5136/2025]
2. The case of the prosecution is that on the basis of a credible
tip-off received on 12.02.2025 at about 3:15 PM by SHO
Rajpal Singh of Police Station Aannhan, it was informed that
one Rajendra Prasad @ Raju Teli, was allegedly cultivating
illicit poppy plants within a mustard field located on
agricultural land he had reportedly taken on lease near the
kaccha road leading from Gadri Kheda to Meja. Considering
the reliability and specificity of the information, proceedings
were initiated under the provisions of the NDPS Act, and
intimation under Section 42(2) of the Act was sent
accordingly. To ascertain the ownership/ khatedari
belongings and possession status of the concerned land, the
local Patwari was also summoned. On reaching the site
around 4:10 PM, a minor boy was found guarding the field.
It was noticed that amidst the mustard crop, several poppy
plants were found scattered at different locations within the
field . Upon preliminary inquiry, the minor disclosed his
identity as Ravishankar Gadri, aged 16 years, resident of
Gadri Kheda, and stated that the cultivation of the said fields
were being undertaken by Rajendra Prasad @ Raju Teli and
upkeep of the same field, by his own mother, Smt. Shanta
Devi. He further stated that he is guarding the field. The
police party, accompanied by independent witnesses and
revenue officials, uprooted a total of 1500 opium poppy
plants with green capsules, packed and sealed them in
marked containers in accordance with the prescribed legal
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procedures. The seized narcotic material was not sampled on
site but kept intact for sampling under judicial supervision in
compliance with the Gazette Notification No. 802 dated
23.12.2022. The land in question, as per the Patwari’s
report, stood in the revenue records in the name of Sohanlal,
son of Devilal, caste Bhil, resident of Suras. No valid licence
or permit for poppy cultivation was produced by the minor.
Consequently, in view of the minor’s confession and his
active role in guarding the crop cultivated without
authorization, action under Sections 8/16 and 8/18 of the
NDPS Act was initiated. The juvenile was apprehended
following due legal procedure and was presented before the
Juvenile Justice Board , later on 18.02.2025 he was released.
The petitioner was apprehending arrest and had filed an
anticipatory bail application before the learned Special Judge
(NDPS), Bhilwara, which was rejected vide order dated
21.04.2025.
3. The petitioner has prayed for anticipatory bail on the ground
that no case for the alleged offences is made out against her
and her incarceration is not warranted. There are no factors
at play in the case at hand that may work against grant of
anticipatory bail to the accused-petitioner and she has been
made an accused based on conjectures and surmises.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor as well as learned
counsel for the complainant oppose the bail application and
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submit that the present case is not fit for grant of
anticipatory bail.
5. I have heard and considered the submissions made by both
the parties and perused the material available on record.
6. At this stage, it merits emphasis that the prosecution’s case
against the petitioner hinges solely on the alleged oral
disclosure made by a juvenile co-accused, Ravishankar
Gadri, during his apprehension and while in police custody.
The said minor, admittedly working as a labourer in the field,
purportedly implicated his mother–the present petitioner
also as a person to guard the crop which has been cultivated
by one Rajendra Prasad @ Raju Teli. However, no
independent corroboration of this disclosure has been
brought on record to substantiate such involvement.
Significantly, the Jamabandi placed on record reflects that
the agricultural land in question stands in the Khatidari rights
of one Sohanlal, and there is no material indicating that the
petitioner exercised dominion or conscious possession over
the land or participated in sowing, irrigating, tending, or
managing the opium crop. It is well settled that statements
made by co-accused or persons in custody, particularly
minors, possess limited evidentiary value unless
corroborated by independent and credible material. Such
unverified statements, especially when obtained while the
minor is in the clutches of law enforcement, cannot by
themselves form a substantive basis to justify custodial
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interrogation or pre-trial incarceration–particularly of a
female accused. Even assuming arguendo that the land was
jointly accessed or used, the doctrine of vicarious liability
cannot, in itself, sustain a criminal charge in the absence of
clear and affirmative evidence of intentional involvement. In
these circumstances, the effort to implicate the petitioner
appears, prima facie, to rest on speculation rather than any
incriminating material of unimpeachable character, thereby
necessitating a cautious and circumspect judicial approach at
this stage. The petitioner, is an uneducated woman belonging
to a socio-economically marginalized background, hailing
from a backward rural area, and has been working as a
daily-wage labourer due to financial constraints. In such
circumstances, it is not inconceivable that her role, if any,
was confined merely to peripheral tasks such as guarding the
field–an activity that, in agrarian contexts, is routinely
undertaken to prevent damage from stray cattle, wild
animals, or to avert theft and ensure that irrigation systems
are functioning effectively. The prosecution itself, through its
own narrative, lends credence to this limited role by
attributing the act of cultivation solely to Rajendra Prasad @
Raju Teli, thereby distancing the petitioner from any overt or
substantive act connected with the sowing, nurturing, or
harvesting of the illicit crop. Whether her purported
involvement extended beyond field watchkeeping remains, at
best, a debatable inference rather than a substantiated
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allegation. The dominant presence of mustard crops and
absence of any evidence linking her to the core act of illicit
cultivation further militates against the presumption of
culpability. Her position is, in fact, materially
indistinguishable from that of the juvenile co-accused, whose
role has been viewed as minor and incidental. In this
backdrop, her custodial interrogation on the pretext of
unearthing further details of poppy cultivation appears
unwarranted and disproportionate, particularly in the
absence of any prima facie evidence suggesting conscious
possession, intent, or active participation.
7. It is well-settled that the concept of anticipatory bail, as
envisaged under Section 438 of the Code of Criminal
Procedure (now mirrored in Section 482 of the Bharatiya
Nagarik Suraksha Sanhita, 2023), is premised on the
apprehension of arrest in a non-bailable offence. The
provision is intended to safeguard the liberty of an individual
who has reason to believe that he or she may be arrested on
accusation of having committed a non-bailable offence, that
may ultimately prove unfounded. An anticipatory bail order,
by its very nature, is in terrorem and becomes operational
only in the event of arrest, ensuring that the person
concerned is released on bail without being subjected to
custodial detention at the first instance.
8. In the present case, the FIR No. 56/2025 registered under
Sections 8/16 and 8/18 of the NDPS Act does name the
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petitioner as one of the alleged accused. It is also an
admitted position that one of the co-accused has already
been arrested in connection with the said offence. Given
these circumstances, the petitioner’s apprehension of arrest
is not illusory or speculative but is rooted in reasonable and
concrete grounds. The apprehension thus attains legal
significance and furnishes a valid basis for invoking the
jurisdiction of this Court under the protective canopy of
anticipatory bail.
9. Furthermore, it is pertinent to note that the petitioner is a
woman, and under the first proviso to Section 437(1) of the
Code of Criminal Procedure, a special statutory dispensation
is envisaged in favour of female accused persons. While the
present proceedings relate to anticipatory bail and not
regular bail, the underlying jurisprudential ethos of Section
437 Cr.P.C. assumes relevance. The said provision is the only
statutory source that substantively governs the grant of bail,
as Section 439 merely acknowledges the special powers of
the Sessions Court and the High Court without laying down
any guiding principles for grant or denial. Section 437(1) lays
down two conditions for denial of bail in non-bailable
offences–(i) such person shall not be so released if there
appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment
for life; or (ii) such person shall not be so released if such
offence is a cognisable offence and he had been previously
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convicted of an offence punishable with death, imprisonment
for life or imprisonment for seven years or more, or he had
been previously convicted on two or more occasions of [a
cognisable offence punishable with imprisonment for three
years or more but not less than seven years. In the present
case, the maximum punishment under Sections 8/16 and
8/18 of the NDPS Act may extend up to 10 years, and there
is no allegation that the petitioner falls within either of the
disqualifying categories under clauses (i) or (ii). In fact,
being a woman, the petitioner falls squarely within the
protective ambit of the proviso to Section 437(1), which
permits the court to direct release even in cases otherwise
falling under those restrictive clauses. The legislative intent
under Section 437 Cr.P.C. is to balance the gravity of offence
with considerations of personal liberty and vulnerability, and
it specifically carves out exceptions for women, minors, and
infirm persons to ensure their protection from unnecessary
pre-trial detention.
10.In this context, the petitioner, being a woman, is squarely
entitled to invoke the benefit of this statutory relaxation. It is
further noteworthy that the safeguards under Section 437
Cr.P.C. extend to situations where the accused is brought
before the Magistrate post-arrest. Even in cases involving
offences punishable with death or life imprisonment, if the
accused is a woman and there are no adverse antecedents or
compelling reasons to deny bail, the Magistrate or Criminal
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Court is empowered to enlarge her on bail at the first
instance. Thus, even assuming arguendo that the petitioner is
arrested in connection with the present offence, the
protective provision under Section 437 Cr.P.C. would still
operate in her favour at the stage of production before the
competent criminal court.
11.It may also be relevant to note that in the present case, a
co-accused, being a juvenile, has already been granted bail
under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015. While Section 437(1)
Cr.P.C. ordinarily imposes a bar on grant of bail in serious
non-bailable offences, the first proviso thereto introduces a
deliberate relaxation for specific vulnerable classes, including
women and children below the age of sixteen. The legislative
intent behind this relaxation is grounded in equitable
jurisprudence and a recognition of the differentiated
treatment warranted for such categories of accused, a
principle that long predates the codification of the Juvenile
Justice Act. In this statutory backdrop, the petitioner-being a
woman-undeniably falls within the protective fold of the said
proviso. Furthermore, the rationale underlying the
introduction of anticipatory bail under Section 438 Cr.P.C.
was, inter alia, to obviate needless arrests in those cases
where, upon arrest, the accused would in all likelihood be
released on bail. The present record does not indicate any
material to show that the petitioner was in exclusive
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possession or conscious custody of the contraband, nor has
any overt act been attributed to her evidencing her direct
involvement in the alleged illicit cultivation. In this light, the
protective contours of Section 437 Cr.P.C., along with the
equitable considerations that informed the grant of bail to the
juvenile co-accused, furnish a legitimate basis for a similarly
calibrated judicial approach vis-à-vis the petitioner. These
factors warrant careful judicial scrutiny while assessing the
necessity of custodial detention in the given factual scenario.
In any case, if the juvenile–facing identical allegations–has
been found entitled to bail, there exists no justifiable reason
to deny the same benefit to the petitioner, particularly when
she enjoys the additional statutory protection available to
women under the first proviso to Section 437(1) Cr.P.C.
12.It is pertinent to clarify the applicability of the statutory bar
under Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, in the context of anticipatory bail for
offences relating to illicit cultivation of opium poppy. Section
37(1)(b) lays down a specific embargo on the grant of bail in
cases where the accused is charged under Sections 19, 24,
27A or for offences involving commercial quantity of narcotic
drugs or psychotropic substances. In such cases, bail may not
be granted unless two cumulative conditions are satisfied: (i)
the Public Prosecutor is given an opportunity to oppose the
application, and (ii) where opposed, the Court must be
satisfied that there are reasonable grounds for believing that
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the accused is not guilty of the offence and is not likely to
commit any offence while on bail. The statutory expression
“reasonable grounds for believing” requires the Court to
reach a level of satisfaction higher than mere suspicion but
short of actual proof. However, at the stage of anticipatory
bail, it is neither appropriate nor permissible for the Court to
render any conclusive findings on the guilt or innocence of
the accused, as such observations risk prejudicing the
eventual trial.
13.In the present case, the petitioner stands accused of the
offence of cultivation of opium poppy plants, which is
governed by Section 8(b) read with Section 18 of the NDPS
Act. Specifically, Section 18(c) applies to cases not involving
small or commercial quantity. Unlike Section 18(a) and (b),
which relate to defined small and commercial quantities,
Clause (c) of Section 18 is a residuary provision under which
punishment may extend up to 10 years but does not attract
the rigours of Section 37. Notably, Clause (c) does not
prescribe any threshold quantity, and hence, neither the
count of plants nor their weight holds legal relevance in the
context of cultivation. Therefore, the offence in question
cannot be classified under “commercial quantity” and,
equally, does not fall under Sections 19, 24, or 27A of the
NDPS Act. Accordingly, Section 37 of the NDPS Act is not
attracted in the instant matter. In the absence of any specific
bar under Section 37, there exists no statutory provision that
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curtails or limits the discretionary jurisdiction of the High
Court or Court of Session under Section 438 Cr.P.C., now
reflected in Section 482 of the BNSS, to entertain and decide
an application for anticipatory bail in such cases. It is well
settled that the availability of pre-arrest bail under the
general criminal law remains unaffected unless expressly
barred by the special statute, as is the case in Section 18 of
the SC/ST (Prevention of Atrocities) Act or Section 49 of the
Rajasthan Excise Act. No such bar exists under the NDPS Act
with respect to the offence alleged against the petitioner.
Therefore, the statutory framework permits consideration of
anticipatory ball in the present factual and legal scenario,
subject to satisfaction of general principles.
14.The satisfaction required at this stage is limited to a prima
facie formation of opinion based on the materials produced,
which can only be assessed in the facts and context of each
individual case. There can be no straitjacket formula, and the
Court must exercise its judicial discretion case to case. If
upon such preliminary scrutiny, the Court is prima facie
satisfied that a reasonable ground exists for believing that
the accused may not be guilty and that there is no necessity
for custodial interrogation, bail can be granted, subject to the
other condition that the Public Prosecutor has been heard and
has had the opportunity to oppose the same. The Court must
also take into consideration the aspect that the NDPS Act
does not, either expressly or by necessary implication,
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exclude the application of anticipatory bail provisions. In the
case at hand, the learned Public Prosecutor has been heard at
length and he also concedes the facts regarding law of
domain of the petitioner over the agricultural land where the
poppy plants were found planted. The Public Prosecutor has
also shown respect over the special provision of bail to a lady.
It is also agreed that her custodial interrogation is not needed
in the present case.
15.In the facts of the present case, the prosecution has not
placed any substantive material indicating exclusive dominion
or conscious possession of the petitioner over the agricultural
land from which poppy plants were allegedly recovered. The
charge pertains specifically to cultivation of poppy plants,
which by its very nature is a prolonged and intentional act,
involving distinct and continuous stages such as procurement
of seeds, sowing, irrigation, tending, and harvesting. There is
nothing on record to suggest that the petitioner procured
such seeds, was involved in sowing, or maintained the crop.
Moreover, a copy of the Jamabandi has been annexed, which
clearly records the land in the name of Sohanlal alone, and
not the petitioner. Merely being assigned a job to guard the
field majorly having mustard crop does not render her
vicariously liable for an activity requiring specific knowledge
and intent. For the sake of repetition, even the prosecution’s
own case is that the land belongs to Sohanlal, was cultivated
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by Rajendra Prasad, and that the petitioner along with her
son was merely engaged for guarding purposes.
16.Agricultural tenancies are documented and regulated.
Records like Jamabandi and entries maintained by the Patwari
form the basis for determining possession and tenancy rights.
Ordinarily, the person whose name appears in the revenue
records is presumed to be in possession and exercise
dominion over the land– which, in the present case, stands
in the name of Sohanlal.
17.Criminal law predicates liability on the basis of mens rea and
identifiable actus reus, and not merely presence of the
accused at or near crime place in the capacity of a daily
labour. Therefore, unless there is a specific overt act,
incriminating material, or conscious knowledge attributed to
the accused, it would be wholly impermissible to invoke penal
liability against a female labour. In the facts of the present
case, no specific allegation has been made against the
petitioner indicating her direct involvement in the cultivation
of the illicit crop, nor is there any material on record
suggesting that she had asserted exclusive or contributory
dominion over the agricultural land in question.
18.Further it must be considered that, prior to the insertion of
the provision for anticipatory bail in the Code of Criminal
Procedure, 1973 (now incorporated under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023), there existed no
express statutory mechanism seeking pre-arrest protection in
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non-bailable offences. Recognizing this legislative vacuum,
the 41st Report of the Law Commission of India extensively
deliberated upon the necessity and desirability of
incorporating such a safeguard in the criminal procedure
framework, so as to protect individuals from arrest in
frivolous or vindictive prosecutions. In Para 39.9 of its Report,
the Law Commission underscored the growing misuse of the
criminal process wherein influential individuals were often
able to orchestrate the arrest of their rivals in false or
frivolous cases -sometimes with the intent to harass,
disgrace, or exert pressure by ensuring their incarceration
even for a few days. The Commission also acknowledged that
in many such instances, there were no reasonable grounds to
apprehend that the accused would either abscond or misuse
the liberty granted to them on bail.
19.It was, therefore, recommended that where the Court is
satisfied that post-arrest, bail would be a logical and
inevitable consequence, it must be empowered to exercise its
discretion to grant pre-arrest bail in appropriate cases.
Importantly, the Commission advised that this power be
conferred solely upon the High Court and the Court of
Session, with directions to take effect at the time of arrest or
thereafter. To this end, a draft provision-proposed as Section
497A-was outlined, which broadly resembles the anticipatory
bail provision eventually codified as Section 438 in the Cr.P.C.,
1973.
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20.Significantly, the Law Commission refrained from
recommending rigid statutory conditions for the grant of
anticipatory bail, noting that it would neither be practicable
nor desirable to attempt an exhaustive enumeration. Doing
so, in their considered view, risked prejudging the case at the
pre-trial stage. Instead, the Commission reposed trust in the
judicial discretion of superior courts to evaluate each matter
on its own merits and to refrain from making any
observations that could prejudice a fair trial. The present
statutory framework and jurisprudence surrounding
anticipatory bail thus finds its origins in these principled
recommendations. The overarching object is to prevent
unwarranted arrest and detention in cases where, even after
arrest, the accused is otherwise likely to be granted bail. This
legislative intent continues to inform the judicial approach to
pre-arrest bail applications under both the old and the new
Codes.
21.It is pertinent to reflect upon the guiding principles
enunciated by the Hon’ble Supreme Court in Joginder
Kumar v. State of U.P., (1994) 4 SCC 260, wherein the
Court emphatically observed that “no arrest can be made
because it is lawful for the police officer to do so. The
existence of power to arrest is one thing, the justification for
the exercise of it is quite another.” The Court underscored
that arrest should not be used as a punitive tool, particularly
when the investigation can proceed without custodial
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detention. In the present case, the petitioner is a woman
hailing from a socially and economically backward rural
background, and the stigma attached to custodial arrest-
especially for a household woman with no antecedents and no
demonstrated role in the alleged offence-would irreparably
damage her dignity, social standing, and familial harmony.
The disproportionate consequences of arrest in such
circumstances, despite the lack of necessity for custodial
interrogation, militates against the very spirit of personal
liberty guaranteed under Article 21 of the Constitution. When
liberty is at stake and arrest itself appears unwarranted in
light of available facts, the statutory discretion vested under
Section 438 Cr.P.C. must be exercised to prevent undue
hardship and social prejudice. When it is presumable that she
would be released on bail upon her production before the
Court, there exist no compelling circumstances that would
justify subjecting her to the cycle of arrest, incarceration, and
subsequent release.
22. In view of the aforesaid, this Court deemed it suitable to
grant the benefit of anticipatory bail to the petitioner in the
present matter. Needless to say, none of the observations
made herein under shall affect the rights of either of the
parties during trial and this Court refrains from commenting
on the niceties of the matter. In view of the absence of
evidence establishing exclusive and conscious possession of
the petitioner over the prohibited crop; the absence of any
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material suggesting her direct involvement in cultivation; the
absence of any presumption arising from possession; and the
fact that the petitioner is a woman entitled to the statutory
relaxation under the first proviso to Section 437 Cr.P.C., and
release of similarly situated accused soon after his arrest ,this
Court is satisfied, for the limited purposes of this application,
that reasonable grounds exist to believe that the petitioner
may not be guilty, and that her custodial interrogation is not
warranted.
23. Accordingly, the instant bail application under Section 482
BNSS is allowed. The S.H.O/I.O/Arresting Officer, Police
Station Mandal, District Bhilwara in F.I.R. No.56/2025 is
directed that in the event of arrest of the petitioner she shall
be released on bail, provided she furnishes a personal bond in
the sum of Rs.50,000/- with two sureties in the sum of
Rs.25,000/- each to the satisfaction of the
S.H.O/I.O/Arresting Officer of the concerned Police Station on
the following conditions:-
(i) that the petitioner shall make hermself available for
interrogation by a police officer as and when required;
(ii) that she shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade her from disclosing
such facts to the court or any police officer, and
(iii) that she shall not leave India without previous
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(FARJAND ALI),J
152-Mamta/-
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