Rajasthan High Court - Jodhpur

Ramesh vs State Of Rajasthan ... on 19 April, 2023

Bench: Madan Gopal Vyas

[2023/RJJD/010877]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 3732/2023

Ramesh S/o Fagana, Aged About 32 Years, R/o Punawali Juda Ps Mandwa Dist. Udaipur Raj.

(At Present Lodged In Dist. Jail Udaipur)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Bharat Nath Yogi For Respondent(s) : Mr. Mukhtiya Khan, P.P.

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

19/04/2023

The present bail application has been filed under Section 439

of Cr.P.C. on behalf of the petitioner, who is in custody in relation

to FIR No.66/2022, Police Station Mandwa, District Udaipur for the

offence under Section 8/20 of the NDPS Act.

Learned counsel for the petitioner submits that the petitioner

has falsely been implicated in the present case. It is further

submitted that the petitioner is in judicial custody since long.

Learned counsel further argues that the recovered contraband

(Ganja plants) does not fall within the definition of "Ganja"

because it consists of leaves, seeds, buds and stalks of the

cannabis plants. Learned counsel submits that the leaves and

stalks of cannabis plant are expressly excluded from the definition

of Ganja. He further submits that as per Central Government

notification S.O. 527 dated 16th July, 1996 specifying small

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quantity and commercial quantity of Narcotics Drugs and

Psychotropic Substances, it does not prescribe commercial and

small quantity of cannabis plant. It is also submitted that the

charge-sheet has been filed. He further submits that in similar

circumstances, the coordinate Bench of this Court granted

indulgence of bail. In support of his arguments, he relied upon

following orders and judgments of Coordinate Bench of this Court

and orders and judgments passed by the Bombay High Court and

the Gujarat High Court:

i. SB Cr. Misc. 2nd Bail No.4232/2017: Ladu Vs. State, decided on 25.5.2017

ii. SB Cr. Misc. Bail Appl. No.4402/2020: Bhura Ram Vs. State, decided on 27.5.2020

iii. SB Cr. Misc. Bail Application No.8874/2020 : Dhanaram Vs. State, decided on 3.9.2020

iv. Anticipatory Bail Appl. No.2173/2022: Kunal Dattu Kadu Vs. UOI, decided on 29.8.2022 (Bombay High Court)

v. SB Cr. Misc. Bail Application No.12894/2021 :

Bhagchand Vs. State & Ors. decided on 4.10.2021

vi. SB Cr. Misc. Bail Application No.9279/2022 : Vinod Kumar Vs. State of Raj, decided on 7.7.2022

vii. SB Cr. Misc. Bail Application No.11230/2022 : Shrawan Lal Meena Vs. State, decided on 22.7.2022

viii. Cr. Misc. Application No.22599/2021 : Fatesang @ Kalubhai Harisangbhai Masani Vs. State of Gujarat, decided on 2.5.2022 (Gujarat High Court)

ix. Bail application No.951/2022: Santosh Apposo Naik Vs. State of Maharashtra, decided on 13.5.2022 (Bombay High Court)

In view of the above, it is prayed that the petitioner may be

enlarged on bail.

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Learned Public Prosecutor vehemently opposed the bail

application. He submits that at the stage of considering the prayer

of the petitioner for granting the benefit of bail, the arguments

advanced by the learned counsel for the petitioner may not be

considered. In support of his contentions, he relied upon the

following orders/judgments:

i. Cr. Petition No.11678/2022: Sri Rangappa Vs. State, decided on 7.12.2022, Karataka High Court

ii. Cr. Appeal No.361/2009 : Shiv Kumar Mishra Vs. State of Goa, decided on 23.2.2009, Supreme Court of India

iii. Cr. Appeal No.722/2017 : Hira Singh & Anr. Vs. UOI & Another, decided on 22.4.2020, Supreme Court of India

Thus, it is prayed that the bail application as preferred by the

petitioner may be rejected.

I have heard the learned counsel for the petitioner and

learned Public Prosecutor and perused the material available on

record as well as the judgments/orders relied upon by the

respective parties.

The Coordinate Bench of this Court in Bhagchand (supra)

while granting bail held as under:

"For ready reference, the definition as provided in Section 2 of the NDPS Act is reproduced herein as under: -

"2. Definition.- In this Act, unless the context otherwise requires,-

(iii) "cannabis (hemp) means-

(b) ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding) the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and"

Having regard to the facts and circumstances of the case, particularly looking to the observations as

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made by the co-ordinate Bench of this Court in the order dated 15.05.2017 (S.B. Criminal Misc. Bail No.3904/2017 titled as "Ramesh Kumar S/o Shri Jagaram Vs. State of Rajasthan), as referred to by the learned counsel for the petitioners and keeping in mind the definition provided in Section 2 of the NDPS Act; that till the filing of the charge-sheet, it was not specified by the prosecution that the leaves and seeds cannot be termed as Ganja; that benefit of bail cannot be declined to the accused-petitioners in absence of classification of the contraband recovered in this case, even when the charge-sheet has been filed by the prosecution; that this Court is of the opinion that the conditions of Section 37 of the NDPS Act are satisfied in this case; and that trial will take sufficiently long time, therefore, without expressing any opinion on the merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioners deserves to be accepted."

The coordinate Bench in Vinod Kumar (supra) also held as

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 seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated". Sub-clause (viia) 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 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.

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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, 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 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 toclause (a) with rigorous imprisonment for 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;

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(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 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 Section 37.Section 37 states that any person who is accused of anoffence under Sections 19, 24 or 27A 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

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Misc. IV Bail Application No.2676/2022 titled 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."

The Bombay High Court while granting anticipatory bail in

the case of Kuna Dattu Kadu held as under: -

"(16) The NDPS Act defined Ganja under Section 2(iii)

(b) as under:

"Ganja, that is the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by whatever, name they may be known or designated; and which means that if the seeds and leaves are accompanied by the tops then the same can be termed as ganja."

From the reading of aforesaid description, it can be seen that Ganja is flowering or fruiting tops of the cannabis plant and when the flowering or fruiting tops are not accompanied, the seeds and leaves are to be excluded.

It is implied that if seeds and leaves are accompanied by tops by way of flowering or fruiting, it would amount to Ganja, but when the seeds and leaves are not accompanied by the tops, this will not be considered as Ganja, ultimately it ewould have to be ascertained whether the flowering or fruiting tops of the cannabis are accompanied by the seeds and leaves."

The Gujarat High Court in the case of Fatesang @ Kalubhai

(supra) in para nos.7 and 8 held as under:

"Having regard the learned advocates for the appearing parties as also perusing the papers of investigation, one thing is certain that the Police authority received the information about the cultivation of cannabis plants and not the information that the applicant is selling any Ganja as a product. From the panchanama to the scene of offence i.e. field, from where plants have been removed, it is clear that only the plants were found and no dry plants or even dry Ganja is found from the filed. So far as punishment for cultivation of cannabis plants is concerned, it is up to 10 years only, which has no connection with the quantity of the plants. Therefore, rigors of Section 37 of "the Act" would not be applicable if case is of cultivation alone"

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8. Prima facie, it appears that no quantitative material in the form of Ganja, is admitted to be even arrived at during the course of investigation authority. Not only that, considering the definition of Ganja, as defined under Section 2(iii)(b), it is only the flowering or fruit tops of the cannabis plant, that too, excluding the seeds and leaves, when not accompanied by the tops, it would become Ganja. Any further finding on the issue, what is seized and recovered, may prejudice the case of prosecution and for that purpose, I avoid to record the same. However, fact remains that, as per the secret information received by the Police, since beginning, it was the case of cultivation of cannabis plant and nothing more. Though, Police has filed this charge-sheet for cultivation of cannabis plants as also possession of Ganja, if it failed to prove at the time of trial, if at all they are able to prove, that too, for what quantity, he is being prosecuted, the applicant needs to be released on bail in absence of that material."

Having regard to the facts and circumstances of the case and

in view of the orders/judgments passed by this Court as well as

other High Courts, without commenting on the merits and

demerits of the case, this Court is of the opinion that the bail

application filed by the petitioner deserves to be accepted, with

certain conditions.

Accordingly, the bail application filed under Sec.439 Cr.P.C. is

allowed and it is directed that petitioner Ramesh S/o Fagana shall

be released on bail in connection with FIR No.66/2022 of Police

Station Mandwa, District Udaipur provided he executes a personal

bond in a sum of Rs.1,00,000/- with two sound and solvent

sureties of Rs.50,000/- each to the satisfaction of learned trial

Court for his appearance before that Court on each and every date

of hearing and whenever called upon to do so till the completion of

the trial. The petitioner is directed to:

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(i) not to take undue advantage of liberty or misuse liberty;

(ii) not act in a manner injurious to the interest of the prosecution;

(iii) surrender passport, if any, to the lower court within a week;

(iv) not leave India without prior permission of the concerned trial court;

(v) furnish the present address or residence to the Investigating officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court.