Rajasthan High Court - Jodhpur
Mohan vs State Of Rajasthan (2025:Rj-Jd:17361) on 3 April, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:17361]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3988/2025
Mohan S/o Chamna Bhagora, Aged About 44 Years, R/o
Garolpada, Teh. Garhi, Dist. Banswara. (Lodged In Jail
Banswara)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Raghuveer Singh Bhati
For Respondent(s) : Mr. Urja Ram Kalbi, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 03/04/2025
1. This application for bail under Section 483 of BNSS (439 Cr.P.C.) has been filed by the petitioner who has been arrested in connection with F.I.R. No.110/2025 registered at Police Station Garhi, District Banswara, for offences under Sections 8/20 of the NDPS Act.
2. As per the prosecution on 21.03.2025, acting upon a secret information, a team of Police Station Garhi raided the field belonging to the present petitioner, registered in the name of his father- Chamna Bhagora situated near DP and found 127 ganja plants weighing 15.210 kgs. 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 (Downloaded on 04/04/2025 at 12:08:27 AM) [2025:RJ-JD:17361] (2 of 5) [CRLMB-3988/2025] 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 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 field without a license.
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, (Downloaded on 04/04/2025 at 12:08:27 AM) [2025:RJ-JD:17361] (3 of 5) [CRLMB-3988/2025] along with 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 definition 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 ganja so recovered 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."(Downloaded on 04/04/2025 at 12:08:27 AM)
[2025:RJ-JD:17361] (4 of 5) [CRLMB-3988/2025]
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 any cannabis plant is covered in clause (a) of Section 20 and the maximum punishment for contravention of clause (a) of Section 20 is 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. (Downloaded on 04/04/2025 at 12:08:27 AM)
[2025:RJ-JD:17361] (5 of 5) [CRLMB-3988/2025]
13. Consequently, the bail application under Section 483 of BNSS (439 Cr.P.C.) is allowed. It is ordered that the accused-petitioner Mohan S/o Chamna Bhagora arrested in connection with F.I.R. No.110/2025 registered at Police Station Garhi, District Banswara, 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 277-himanshu/-
(Downloaded on 04/04/2025 at 12:08:27 AM) Powered by TCPDF (www.tcpdf.org)