Rajasthan High Court - Jodhpur

Ladu Ram vs State Of Rajathan (2025:Rj-Jd:23053) on 13 May, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:23053]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 4883/2025
Ladu Ram S/o Panna Ram, Aged About 48 Years, R/o Chhabo Ki
Dhani, Bawari, Police Station Khedapa, District Jodhpur. (At
Present Lodged In Central Jail Jodhpur)
                                                                         ----Petitioner
                                     Versus
State Of Rajathan, Through Pp
                                                                       ----Respondent

For Petitioner(s)          :     Mr. Bhagat Dadhich
For Respondent(s)          :     Mr. Sameer Pareek, PP


         HON'BLE DR. JUSTICE NUPUR BHATI

Order 13/05/2025

1. The instant misc. bail application has been filed by the

petitioner, who is in custody in connection with the FIR

No.44/2025 dated 10.03.2025, registered at Police Station

Kherapa District Jodhpur (Rural), for the offence punishable under

Section 8/18 of the NDPS Act.

2. The case of the prosecution is that on 10.03.2025 at around

2.10 PM, upon receiving an information, the SHO Police Station

Kherapa, Jodhpur (Rural) along with his team reached at Baoli

Chhabo ki Dhani near the tubewell of Baoli of the accused

petitioner-Ladu Ram and upon search being made, it was found

that the petitioner was cultivating plants of opium which were

2200 in numbers with height around 21/2 feet. The petitioner was

arrested thereupon.

3. Learned counsel for the petitioner submits that the offence

alleged against the petitioner is covered under Section 8 (b) of the

NDPS Act which is punishable under Section 18. He further

submits that since in the present case, the police had recovered

opium plants, the punishment for cultivating the same would fall

[2025:RJ-JD:23053] (2 of 9) [CRLMB-4883/2025]

under sub-Clause (c) of Section 18 of the NDPS Act, as no

commercial or small quantity has been prescribed for

poppy/opium plants. Learned counsel further submits that the

Coordinate Benches of this Court in SBCRLMB Nos.5293/2024 and

2687/2025, while taking into consideration Section 18 of the NDPS

Act, have held that in such cases, rigors of Section 37 of the NDPS

Act does not apply. The relevant portion of said orders are

reproduced as under:-

In SBCRLMB No.2687/2025:-

"xxxxxx 7. This Court is conscious of the S.O. 1055 (E) dated 19.10.2001 published in the Gazette of India, Extra., Pt.II Section 3(ii) dated 19.10.2001 and Note no.3 appended to the table thereto, which provides:

"3. "Small Quantity" and "Commercial Quantity"

8. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that since the offence in the present case is not punishable under Sections 19, 24 and 27A and neither any commercial quantity has been prescribed for the cultivation of poppy plants as per the notification as stated above; and particularly since the prosecution has not shown any apprehension of the petitioners tampering with the evidence or involving themselves in cases of similar nature in case they are enlarged on bail, therefore the embargo contained in Section 37 is not applicable in the present case. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioners on bail. xxxxxxxx"

In SBCRLMB No.5293/2024:-

"xxxxxx 5. It is the case of the prosecution that upon receiving a secret information when the police party reached at the agricultural field of the petitioner Vala Ram it was found that some plants of the species of papaver, Somnife rum-L commonly known as opium poppy were cultivated in between cultivation of fennel plants. Around 743 poppy plants were recovered from the agricultural field. The petitioner was

[2025:RJ-JD:23053] (3 of 9) [CRLMB-4883/2025]

arrested and after usual investigation, he was charge-sheeted for committing offence under Section 8/18NDPS Act.

6. A perusal of the record revealing that petitioner is a Khatedar tenant of Khasra Nos. 61, 62, 65 and 66 ad-measuring 11.1864, 0.1897, 1.5302, 1.2773 hector at the Village Gundagiri, District Pali. A copy of the Jamabandi revealing that the crops of fennal, barley, gram, wheat and cow fodder were cultivated in the field.

7. It is further revealing that the opium poppy plants were scattered in the field at several places. A plea of water scattering, dispersion and spontaneous growth has been raised which could not be ignored in view of the number of plants commensurate to the total land area. However, this Court is not giving any finding on this fact. In Khasra No.61 ad measuring 11.7864 hectors, there are several other khatedar tenants with the petitioner Vala Ram and he has 1/40th share in it. A plea of joint possession of several persons and so that liability of exclusive and conscious possession cannot be fasten, has also some worth to consider. The guilty can be adjudicated only after the entire evidence is laid in the trial and appreciation of evidence is made however, at this stage the plea of innocence shall prevail in favour of the accused.8. The petitioner is booked for offence of cultivation of poppy plants which is covered under Section 8 (b) of the NDPS Act. Section 18 of the NDPS Act makes provision for punishment of contravention in relation to opium poppy and opium. Sub-clause(b) of Section 18 prescribes punishment for small quantity. It also provides punishment for commercial quantity and all other cases are covered under Sub-clause (c). The cultivation of opium poppy plant would fall under the category (c) of Section 18 of the NDPS Act. No specific quantity of plants are defined in Clause (c) of Section 18 of the NDPS Act. This Court has dealt with the issue related to the present bail application being SBCRLM4thBNo.6894/2022 in the case of Bhajan Lal Vs. State of Rajasthan decided on 25.05.2022. The relevant paras are being reproduced as under:-

"2. The brief facts of the case are that the police received information that illegal opium is being cultivated on a land measuring about 110x57 feet and that the cultivation is becoming ripe and is nearing the stage of harvesting. Police officials went to the spot and found a 4-metre mud boundary encapsulating the crops of opium and plants of chicory and fennel were planted on either sides of the opium cultivation. The Halka Patwari present at the spot informed that the land is Khasra No. 224 and that the petitioner has been illegally encroaching upon the land of one Babulal since past 25 years. The people nearby also affirmed that the opium cultivation belonged to Bhajan Lal and that he does not have any

[2025:RJ-JD:23053] (4 of 9) [CRLMB-4883/2025]

license. Upon questioning, Bhajan Lal confirmed that he does not have any license for opium cultivation. As per provisions of NDPS Act, photographs were clicked and all the opium plants were uprooted from the grounds along with the roots and 36 piles were made. Two samples of 1 kg each, marked A (chemical sample)and B (control sample), were taken from the seized plants for investigation.

3. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner and he has nothing to do with the alleged offence. The petitioner is booked for offence of cultivation of opium poppy which is covered under Section 8(b) of the NDPS Act. Section 18, which discusses the punishment for contravention in relation to opium poppy and opium, prescribes punishment for small quantity in sub-clause (a), for commercial quantity in sub- clause (b) and all other cases are covered under sub-clause (c). In the present case, the penal provision applicable to the petitioner is sub-clause

(c) of Section 18 as there is no specific quantity which has been defined in the Act for cultivation of opium poppy rather Note no. 3 appended to the notification specifying small and commercial quantity S.O. 1055 (E) dated 19thOctober, 2001 published in the Gazette of India, Extra., Pt. II Sec.3(ii) dated 19th October, 2001 states that "

Note 3.- "small quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985". The embargo contained in Section 37 is not attracted as there is no question of commercial quantity in the present case."

Similar consideration in detail has been made by this Court in the case of Vinod Kumar Vs. State of Rajasthan bail application being SBCRLMB No.9279/2022 decided on 07.07.2022. The para Nos. 4 & 5 are reproduced here 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 (vii a) of

[2025:RJ-JD:23053] (5 of 9) [CRLMB-4883/2025]

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 19thOctober, 2001 published in the Gazette of India, Extra., Pt. II Sec.3(ii) dated 19th October, 2001and 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, alongwith 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 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

[2025:RJ-JD:23053] (6 of 9) [CRLMB-4883/2025]

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:

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 Section37. Section 37 states that any person who is accused of an offence under Sections 19, 24 or27A 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 Misc. IV Bail Application No.2676/2022titled 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.

5. Considering the arguments advanced by the counsel for the parties, looking to the over all

[2025:RJ-JD:23053] (7 of 9) [CRLMB-4883/2025]

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."

So also in the case of Kallu Nath Vs. State of Rajasthan being S.B. Criminal Misc. IV Bail Appln. No.2676/2022 decided on 27.05.2022.

"4. Heard learned counsel for the parties. Perused the material available on record. The case of the prosecution is that the recovered contraband , i.e. opium poppy plants that were being cultivated, qualify as contraband of commercial quantity. Sub- clause (viia) of Section 2 of the NDPS 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 Note no. 3 appended to the notification "Note 3.- "small quantity" and "Commercial Quantity"

with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985". As per the Notification, there is no defined amount for cultivation of opium poppy that can be treated as either small or commercial quantity. Section 18 of the NDPS Act, which discusses the punishment for contravention in relation to opium poppy and opium, prescribes punishment for small quantity in sub-clause (a), for commercial quantity in sub-clause (b) andall other cases are covered under sub-clause (c). The offence of cultivation of opium poppy is prohibited under sub-clause (b) of Section8. Thus, the corresponding punishment-prescribing provision for offence under Section 8(b) would be Section 18(c). Grant of bail for offences stipulated in the NDPS 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 27A and of an offence involving commercial quantity cannot be granted bail. The offence in the present case is not covered by Sections 19, 24 or 27A and the commercial quantity for cultivation of opium poppy is not defined. Therefore, it can be safely inferred from the above observations that the

[2025:RJ-JD:23053] (8 of 9) [CRLMB-4883/2025]

restriction contained under Section 37 on provision of bail will not operate in the present case.

5. Considering the observations made herein above and looking to the possibility that the trial may take long time to conclude, this court deems it just and proper to enlarge the petitioner on bail. It is to be clear that the observations made in the present order shall not influence the trial judge in any manner and are limited to the justifiable disposal of this bail application only."

As considered above, in the given circumstances, the embargo of Section 37 of the NDPS Act would not come in the way of granting bail to the petitioner. xxxxxxxxx"

4. Per contra, learned Public Prosecutor opposes the bail

application, however, is not in a position to refute the fact that the

Coordinate Bench of this Court in the cases of similar nature, has

granted benefit of bail to the accused persons while taking into

consideration the provisions laid down under Section 18 of the

NDPS Act.

5. As per the Standing Order No.1055 (E) dated 19.10.2001

published in the Gazette of India, Extra., Pt.II Section 3(ii) dated

19.10.2001 and Note No.3 appended to the table thereto, it is

apparent that there is no commercial quantity prescribed for

cultivation of poppy/opium plants. The same reads as under:

"3. "Small Quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and

Psychotropic Substances Act, 1985."

6. Having heard and considered the submissions advanced at

Bar by the learned counsel for the parties as well as the orders

cited at Bar, prima facie, it is clear that since the offence in the

present case is not punishable under Sections 19, 24 and 27A of

[2025:RJ-JD:23053] (9 of 9) [CRLMB-4883/2025]

the NDPS Act and neither any commercial quantity has been

prescribed for the cultivation of poppy/opium plants as per the

aforesaid notification; and since the prosecution has not shown

any apprehension of the petitioner tampering with the evidence or

involving himself in cases of similar nature in case he is enlarged

on bail, therefore, the embargo contained under Section 37 of the

NDPS Act is not applicable in the present case. Thus, without