Rajasthan High Court - Jodhpur

Laxman vs State Of Rajasthan (2025:Rj-Jd:44616) on 10 October, 2025

[2025:RJ-JD:44616]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 11179/2025
Laxman S/o Hardar, Aged About 30 Years, R/o Sangela Ps
Arthana District Banswara (At Present Lodged In Jail Banswara)
                                                                        ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)            :    Mr. Raghuveer Singh Bhati
For Respondent(s)            :    Mr. Narendra Singh Chandawat, PP


      HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Order 10/10/2025

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

filing the bail 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

     2.     Police Station                         Aruthana
     3.     District                               Banswara
     4.     Offences alleged in the FIR            8 and 20 of NDPS Act
     5.     Offences added, if any                                  -
     6.     Date of passing of impugned 03.09.2025
            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 no factors at play in the

case at hand that may work against grant of bail to the accused-

petitioner and he has been made an accused based on conjectures

and surmises.

3. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

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and submits that the present case is not fit for enlargement of

accused on bail.

4. I have heard and considered the submissions made by both

the parties and have perused the material available on record.

5. The petitioner is booked for offence of cultivation of Ganja

plants which is covered under Section 8 (b) of the NDPS Act.

Section 20 of the NDPS Act makes provision for punishment of

contravention in relation to Ganja plant and Ganja. Sub-clause (c)

provides punishment for commercial quantity. The cultivation of

Ganja plant would fall under the of Section 20 of the NDPS Act. A

Coordinate Bench of this Court has dealt with the issue related to

the similar bail application being S.B. Criminal Misc. Fourth Bail

Application No.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 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

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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 19th October, 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.

6. Similar consideration in detail has been made by the

Coordinate Bench of 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 subclause (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 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 19th October, 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, 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 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

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quantity. iii) The cultivation of "any cannabis plant" is prohibited and made an offence under subclause (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 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, withrigorous 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 lessthan 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 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, 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

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N.D.P.S. Act was not attracted. 5. 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.

7. So also in the case of Kallu Nath Vs. State of Rajasthan

being ` 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. Subclause (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) and all other cases are covered under sub-clause (c). The offence of cultivation of opium poppy is prohibited under sub-clause (b) of Section 8. 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 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.

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8. 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. 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 29 kgs and 500 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. There is high

probability that the trial may take long time to conclude. In light