Rajasthan High Court - Jodhpur

Ishwar vs State Of Rajasthan (2025:Rj-Jd:25378) on 23 May, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:25378]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 6065/2025

Ishwar S/o Kanji, Aged About 40 Years, R/o Samapada Samariya
Ps Sadar District Banswara (At Present Lodged In Jail Banswara)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)         :     Mr. R.S. Bhati
For Respondent(s)         :     Mr. Sameer Pareek, PP



               HON'BLE DR. JUSTICE NUPUR BHATI

Order

23/05/2025

1. The instant bail application has been filed under Section 483

BNSS on behalf of the petitioner, who is in custody in relation to

F.I.R. No.82/2025 dated 20.03.2025, registered at Police Station

Sadar Banswara, District Banswara, for the offence under Section

8/20 of NDPS Act.

2. Learned counsel for the petitioner submits that several plants

of 'Ganja' were recovered and found to be cultivated by the

petitioner which weighed around 62 kgs 315 gms. Learned counsel

for the petitioner places reliance upon judgments of this Court

passed in SB Criminal Misc. Bail Application No.9279/2022

(Vinod Kumar Vs. State of Rajasthan through PP), SB

Criminal Misc. Bail Application No.538/2023 (Mohanlal Vs.

State of Rajasthan through PP), SB Criminal Misc. Bail

Application No.4883/2025 (Ladu Ram Vs. State of

Rajasthan through PP) SB Criminal Misc. II Bail Application

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No.6376/2024 (Guman Singh Vs. State of Rajasthan

through PP) and SB Criminal Misc. III Bail Application

No.8683/2023 (Nandlal @ Nand Singh Vs. State of

Rajasthan through PP), SB Criminal Misc. Bail Application

No.3737/2025 (Jagdish Ram Vs. State of Rajasthan

through PP) wherein, this Court has enlarged the accused-

petitioners on bail while taking into consideration the fact that

embargo contained under Section 37 of the NDPS Act, would not

be attracted to such offence. He also submits that as the whole

plants were weighed without removing the stems, roots, leaves

etc., he thus, urges, that the present petitioner shall also be

enlarged on bail.

3. Learned Public Prosecutor opposes the bail application.

4. Heard learned counsel for the parties as well as perused the

material available on record.

5. This Court finds that the Notification issued in this regard

that specifies small and commercial quantity for Narcotic Drugs

and Psychotropic Substances i.e 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 purpose of

determining the total weight of the recovered contraband 'Ganja'

in the present case, 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 into consideration for

weighing of contraband 'Ganja' as per the definition clause under

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NDPS Act, as there was no bifurcation of seeds, roots, stems,

leaves and soil before weighing the recovered contraband. Thus, it

is safe to infer that the actual weight of ganja so recovered would

be less than the claimed weight and cannot be said to be of

commercial quantity.

6. Section 8(b) of the NDPS Act stipulates that the cultivation of

"any cannabis plant" is prohibited. Furthermore, Section 20 of the

NDPS Act outlines the punishment for contravention in relation to

cultivation of cannabis plant which is reproduced hereunder:

"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 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:

6.1. On a bare persual of the aforementioned Section, this Court

finds that contravention in relation to cultivation of cannabis plant

is covered under Section 20(a) and the punishment for

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contravention of the same is prescribed without any specification

of quantities. Therefore, the applicable provision prescribing

punishment for the offence under Section 8(b), which pertains to

the cultivation of the cannabis plant, would be Section 20(a)(i)