Rajasthan High Court

Rameshwar S/O Babu Lal vs State Of Rajasthan (2024:Rj-Jp:6861) on 9 February, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:6861]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

    S.B. Criminal Miscellaneous Bail Application No. 1107/2024

Rameshwar S/o Babu Lal, R/o Keero Ka Jhopda, Gram Papda,
Police Station Indergarh, District Bundi (Raj.) (At present
confined at Distt Jail Bundi)
                                                                       ----Petitioner
                                       Versus
State of Rajasthan, through PP
                                                                  ----Respondent


For Petitioner(s)          :        Mr. Sudarshan Kumar Laddha
For Respondent(s)          :        Mr. C.G. Chopra, PP



          HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                       Order

09/02/2024

      The instant bail application has been filed under Section 439

Cr.P.C. on behalf of accused-petitioner. The accused-petitioner has

been arrested in connection with FIR No.218/2023 registered at

Police Station Indergarh, District Bundi for the offence(s) under

Sections 8/20 of the NDPS Act.

      Learned counsel for the accused-petitioner submits that

accused-petitioner    is       an     innocent     person        and    has   falsely

implicated in the matter. He further submits 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. 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 16.07.1996 specifying small quantity and commercial



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quantity of Narcotics Drugs and Psychotropic Substances, it does

not prescribed commercial and small quantity of cannabis plant. In

the similar circumstances, the coordinate Bench of this Court have

enlarged accused on bail. Learned counsel for the accused-

petitioner in support of his arguments, relied upon the following

orders and judgments of Coordinate Bench of this Court and

orders and judgments passed by the other High Courts:
       i.    S.B.    Criminal   Misc.    2nd     Bail  Application
             No.4232/2017: Ladu Vs. State, decided on
             25.05.2017.
       ii.   S.B. Criminal Misc. Bail Application No.4402/2020:
             Bhura Ram Vs. State, decided on 27.05.2020
       iii.  S.B. Criminal Misc. Bail Application No.8874/2020:
             Dhanaram Vs. State, decided on 03.09.2020.
       iv.   Anticipatory Bail Application No.2173/2022: Kunal
             Dattu Dadu Vs. UOI, decided on 29.08.2022
             (Bombay High Court).
       v.    S.B. Criminal Misc. Bail Application No.12894/2021:
             Bhagchand Vs. State & Ors, decided on 04.10.2021.
       vi.   S.B. Criminal Misc. Bail Application No.9279/2022:
             Vinod Kumar Vs. State of Raj, decided on
             07.07.2022.
       vii.  S.B. Criminal Misc. Bail Application No.11230/2022:
             Shrawan Lal Meena Vs. State, decided on
             22.07.2022.
       viii. Cr. Misc. Application No.22599/2021: Fatesang @
             Kalubhai Harisangbhai Masani Vs. State of Gujarat,
             decided on 02.05.2022 (Gujarat High Court)
       ix.   Bail Application No.951/2022: Santosh Apposo Naik
             Vs. State of Maharashtra, decided on 13.05.2022
             (Bombay High Court).



       In view of the above, it is prayed that the accused-petitioner

may be granted benefit of bail.

      Learned Public Prosecutor vehemently opposes the bail

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

of the accused-petitioner for granting the benefit of bail, the


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arguments raised by learned counsel for the accused-petitioner

may not be considered. Therefore, the bail application of the

accused-petitioner may be rejected.

      Heard learned counsel for the accused-petitioner and learned

Public Prosecutor and perused the material available on record as

well as the judgments/orders relied upon by learned counsel for

the petitioner.

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 plaints 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 NDPS Act defined "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.

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

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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 and700 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 there under,--

(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 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;

(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

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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 Section20. 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 underSection 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 37states 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. Neither the offence in the present case is covered by Sections 19, 24or 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 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 Section37 of N.D.P.S. Act was not attracted."

Having regard to the facts and circumstances of the case and

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

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other High Courts, without commenting anything on the

merits/demerits of the case, I deem it just and proper to enlarge

the accused-petitioner on bail.

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

allowed and it is ordered that the accused-petitioner Rameshwar

S/o Babu Lal in connection with FIR No.218/2023 registered at

Police Station Indergarh, District Bundi shall be enlarged on bail

provided he furnishes a personal bond in the sum of Rs.1,00,000/-

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