Jamna Lal vs State Of Rajasthan ...
2023 Latest Caselaw 9863 Raj

[2023:RJ-JD:40475]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 14725/2023

Jamna Lal S/o Madhu Lal Jat, Aged About 52 Years, R/o Kashmor, P.s. Chanderia, Dist. Chittorgarh (At Present Lodged In Dist. Jail, Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. R. K. Charan For Respondent(s) : Mr. A. R. Choudhary, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

20/11/2023

1. The jurisdiction of this court has been invoked by way of

filing an instant application under Section 439 CrPC at the

instance of accused-petitioner. The requisite details of the matter

are tabulated herein below:

S.No.                           Particulars of the Case
     1.     FIR Number                                147/2023
     2.     Concerned Police Station                  Chanderia
     3.     District                                  Chittorgarh
     4.     Offences alleged in the FIR               Sections 8/20 of NDPS
                                                      Act.
     5.     Offences added, if any                    --

6. Date of passing of impugned 15.09.2023 order

2. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are several flaws and laches

in the case of the prosecution. The recovery of the contraband was

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from ganja plants growing on the edge of the agricultural field,

thus, conscious possession of the petitioner cannot be deduced. As

the whole plants were weighed without removing the stems, roots,

leaves etc., the total weight of the 652 recovered plants of ganja,

i.e. 315 kgs, can be safely assumed to be below the commercial

quantity. Therefore, the embargo contained under Section 37

would not be attracted.

3. Per contra, learned Public Prosecutor opposes the bail

application and submits that the alleged recovered contraband is

way above the demarcated commercial quantity, thus, the

impediment contained under Section 37 of NDPS Act will be

attracted in the factual situation of the present case.

4. Heard and perused the material available on record. 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.

5. 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. The

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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 2 [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

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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."

6. 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).

7. 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 an offence under Sections 19, 24 or

27 A 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. This Court has

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passed a detailed order in S.B. Criminal 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.

8. 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.

9. Accordingly, the instant bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

shall be enlarged on bail provided he furnishes a personal bond in

the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to

the satisfaction of the learned trial Judge for his appearance

before the court concerned on all the dates of hearing as and

when called upon to do so.

(FARJAND ALI),J 161-Mamta/-

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