Rajasthan High Court - Jodhpur
Heer Singh vs State on 7 June, 2021
Bench: Dinesh Mehta Judge)
(1 of 3) [CRLMB-4986/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 4986/2021
Heer Singh
----Petitioner
Versus
State
----Respondent
For Petitioner(s) : Mr. VR Choudhary, through Cisco
Webex
For Respondent(s) : Mr. Gaurav Singh, PP
JUSTICE DINESH MEHTA
(VACATION JUDGE)
Order
07/06/2021
(1) Upon perusal of the record, this Court finds that 1175 units
of Papaver Somniferum L. plants commonly known as Opium
plants were found cultivated/grown in petitioner's field.
(2) Mr. Gaurav Singh, learned Public Prosecutor informs that
those 1175 plants of Opium when weighted, were 11.75 kgs in all.
(3) Mr. Choudhary, learned counsel appearing for the petitioner
submits that the quantity in question (11.75 kgs) is below
commercial, whereas Mr. Singh, learned Public Prosecutor submits
that it is not the weight of the plants or the number of plants,
which should be reckoned for the purpose of deciding as to
whether the quantity of Opium plants grown is commercial or
below commercial. He submits that it is the capacity to produce
the ultimate product, viz., opium milk/ opium, which should be
taken into consideration, while determining the question as to
whether the number of poppy plants found are below commercial
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or commercial, so as to meet out the requirement of Section 37 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, 'the Act of 1985').
(4) Learned Public Prosecutor invites Court's attention towards
provisions contained in Section 2(xvii) and 18 of the Act and
submits that neither the Act nor the notification issued by the
Central Government in this regard, specifies the quantity to be
small or commercial based on number of plants.
(5) Learned counsel for the parties are not in a position to bring
to the notice of the Court any specific provision of law or any
judgment, which lay down with certitude the number of plants,
which should be taken to be of commercial quantity.
(6) The notification No.1055(E) dated 19th October, 2001 issued
by the Central Government in exercise of the powers conferred by
clauses (viia) and (xxiiia) of Section 2 of the Act of 1985 does not
specify the area of cultivation or number of poppy plants. The
reason for not doing so, as indicated in the notification is that the
offence is covered under clause (c) of Section 18 of the Act of
1985.
(7) In the opinion of this Court since the very cultivation of
opium poppy without a license is prohibited under Section 18 of
the Act of 1985, the view of the Central Government that
cultivation of opium poppy irrespective of quantity is covered by
Section 18(c) of the Act of 1985 does not appear to be a correct
position.
(8) In view of above referred stipulation in the notification, each
case of cultivation of poppy plant (1 plant or 1 lac plants) is being
considered under the provisions of Section 18(c) of the Act of
1985 and offenders are being released on bail without ensuring
(3 of 3) [CRLMB-4986/2021]
compliance of the provisions contained in Section 37(1)(b) of the
Act of 1985.
(9) Let a notice be issued to Union of India, Ministry of Finance,
Department of Revenue. Notice be served upon Mr. Mukesh
Rajpurohit, learned Assistant Solicitor General. Counsel for the
petitioner is directed to supply a copy of the bail application and a
web copy of the order instant.
(10) List this case on 11.6.2021 alongwith the record of SB Cr.
Misc. Bail Application No.5304/2021.
(DINESH MEHTA), VJ.
1-CPGoyal/-
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