Rajasthan High Court - Jodhpur
Ajmal vs State Of Rajasthan (2025:Rj-Jd:2459) on 14 January, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:2459]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 619/2025
Vaktaram S/o Shri Meetharam, Aged About 32 Years, R/o Berasfali
Malera, Tehsil And P.s. Pindwara, Dist Sirohi (Presently Lodged In Dist
Jail Sirohi)
----Petitioner
Versus
State Of Rajasthan, Through PP ----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 620/2025
Ajmal S/o Shri Sakaram, Aged About 32 Years, R/o Dhakela Fali Vasa ,
Tehsil Pindwara, Presently Janapur, Dist Sirohi (Presently Lodged In
Dist Jail, Sirohi )
----Petitioner
Versus
State Of Rajasthan, Through PP ----Respondent
For Petitioner(s) : Mr. Ravi Panwar
For Respondent(s) : Mr. Hathi Singh Jodha, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
14/01/2025
1. These applications for bail under Section 439 Cr.P.C. have
been filed by the petitioners who have been arrested in connection
with F.I.R. No.163/2024 registered at Police Station Pindwara,
District Sirohi, for the offence punishable under Section 8/20 of
the NDPS Act.
2. Learned counsel for the petitioners submitted that the
petitioners have been falsely implicated in the present case. As
per the prosecution, acting upon a secret information, a team of
Police Station Pindwada raided the fields near Mauja Janapur
Kojda Road and found 800 ganja plants inside two fields owned by
the Shri Laxman and Shri Ajmera.
3. Learned counsel for the petitioners submitted that the
recovery of the contraband was from ganja plants growing on the
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agricultural field, thus, conscious possession of the petitioners
cannot be deduced. It was also submitted that as the whole plants
were weighed without removing the stems, roots, leaves etc., the
total weight of the 350 recovered plants of ganja recovered from
the field cultivated by the petitioner- Vaktaram, i.e. 22.4
kilograms, can be safely assumed to be below the commercial
quantity. Therefore, the embargo contained under Section 37
would not be attracted.
4. Lastly, learned counsel for the petitioners submitted that the
petitioners are in judicial custody; challan has already been filed
and the trial of the case will take sufficiently long time to
conclude, therefore, the benefit of bail may be granted to the
accused-petitioners.
5. Per contra, learned Public Prosecutor has vehemently
opposed the bail application.
6. Heard learned counsel for the petitioners 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 faice finds that the
case of the prosecution is that the petitioners were cultivating
ganja plants in their fields and the quantity of the recovered
plants is well above the commercial limit specified for contraband
ganja.
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
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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 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 recovered ganja 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
[2025:RJ-JD:2459] (4 of 5) [CRLMB-619/2025]
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."
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 of 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 rigours 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.
[2025:RJ-JD:2459] (5 of 5) [CRLMB-619/2025]
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 petitioners deserves to be
accepted.
13. Consequently, the bail applications under Section 439 Cr.P.C.
are allowed. It is ordered that the accused-petitioners (1)
Vaktaram S/o Shri Meetharam and (2) Ajmal S/o Shri
Sakaram arrested in connection with F.I.R. No.163/2024
registered at Police Station Pindwara, Dist. Sirohi, shall be
released on bail, if not wanted in any other case, provided each
of them 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 their 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
263-264 divya/-
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