Rajasthan High Court - Jodhpur
Saka Ram vs State Of Rajasthan (2025:Rj-Jd:32424) on 23 July, 2025
[2025:RJ-JD:32424]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8313/2025
Saka Ram S/o Rupa Ram, Aged About 58 Years, Resident Of
Bhagwa, Police Station Siwana, Tehsil Siwana, District Balotra,
Rajasthan. (At Present Lodged In District Jail Jalore)
----Petitioner
Versus
State Of Rajasthan, Through The Public Prosecutor.
----Respondent
For Petitioner(s) : Mr. Deepak Menaria.
For Respondent(s) : Mr. Hanuman Prajapati, PP.
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order 23/07/2025
1. This application for bail under Section 483 of BNSS (Section 439 Cr.P.C.) has been filed by the petitioner, who has been arrested in connection with F.I.R. No.21/2025, registered at Police Station Bishangarh, District Jalore, for the offences under Sections 8/17 and 18 of NDPS Act.
2. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
3. Learned counsel for the petitioner submits that the petitioner is merely a helper and that the opium poppy plants were being cultivated on agricultural land belonging to one Masra Ram, which was being cultivated by Jagdish.
4. Learned counsel further submits that the Coordinate Benches of this Court in the case of Valaram Vs. State of Rajasthan, passed in SBCRLMB Nos.5293/2024 and in case of Sohan Singh (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (2 of 7) [CRLMB-8313/2025] vs. State of Rajasthan, passed in SBCRLMB Nos.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, order dated 04.03.2025:-
"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" 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."
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, order dated 01.05.2024:-
"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 betweenrdSimilar 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 (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (3 of 7) [CRLMB-8313/2025] seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated". Sub-clause (vii a) 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 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 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 (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (4 of 7) [CRLMB-8313/2025] 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 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 (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (5 of 7) [CRLMB-8313/2025] 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."
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"
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 opium poppy 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. It is further submitted by learned counsel for the petitioner that the Investigating Officer has not completed the investigation and consequently challan has not been filed yet; and the petitioner is in judicial custody since 15.02.2025, and the investigation/trial of the case is likely to take more time.
Therefore, the benefit of bail may be granted to the accused-
petitioner.
7. Per contra, the learned Public Prosecutor vehemently opposed the bail application and submitted that the petitioner is found cultivating the plants of opium poppy, which is prohibited under the NDPS Act.
8. In the light of judicial reasoning laid down in Valaram and Sohansingh (supra) it becomes evident that in cases involving (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (6 of 7) [CRLMB-8313/2025] cultivation of opium poppy, the absence of any prescribed quantity under NDPS Act, renders the offence incapable of being classified as involving either small or commercial quantity. Consequently, the stringent condition under Section 37 of NDPS Act rendered inapplicable, and the case falls to be considered outside the statutory embargo, purely on the basis of settle legal interpretation.
9. Having considered the rival submissions, the facts and circumstances of the case, and the aforementioned rationale, the challan has been filed and the trial is likely to take further time, petitioner is in judicial custody since 15.02.2025 and without expressing any opinion on the merits or demerits of the case, this Court is inclined to enlarge the petitioner on bail.
10. Consequently, the instant bail application under Section 483 of BNSS (439 of Cr.P.C.) is allowed. It is ordered that the accused-
petitioner- Saka Ram S/o Rupa Ram, arrested in connection with F.I.R. No.21/2025, registered at Police Station Bishangarh, District Jalore, shall be released on bail, if not wanted in any other case, provided he 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 his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.
11. In case, the petitioner remains absent on any date of hearing or makes an attempt to delay the trial by seeking unnecessary adjournments, it shall be taken as a misuse of concession of bail granted to him by this Court. The (Downloaded on 30/07/2025 at 09:25:16 PM) [2025:RJ-JD:32424] (7 of 7) [CRLMB-8313/2025] prosecution, in such a situation, shall be at liberty to move an application seeking cancellation of bail granted to the petitioner today by this Court.
12. 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.
(MUKESH RAJPUROHIT),J 125-/Jitender//-
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