Rajasthan High Court - Jaipur
Ramratan vs . State Of Rajasthan. on 26 November, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S. B. CRIMINAL MISC. BAIL APPLICATION No.13079/2015. : : Ramratan Vs. State of Rajasthan. : : Date of Order : 26.11.2015 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Yogesh Singhal, for the petitioner. Mr. Jitendra Shrimali, P. P. for the State. BY THE COURT
REPORTABLE Heard learned counsel for the parties.
The accused-petitioner has moved this application for grant of bail under Section 439 Cr.P.C. in respect of FIR No.865/2015 registered at Police Station Bayana, District Bharatpur for the offence under Section 8/20 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).
The allegation against the petitioner is that he cultivated 400 plants of cannabis in his field without any valid license or permit. The further allegation against the petitioner is that 500 gm dry 'ganja' was found in his possession and that also without any valid license or permit. It is the case of prosecution that out of 400 cannabis plants, 50 plants and out of the recovered 'ganja', 200 gm 'ganja' were sent for chemical analysis to FSL and the report is still awaited.
It was submitted by the learned counsel for the petitioner that so far as 'ganja' allegedly recovered from the possession of the petitioner is concerned, it being of small quantity, to that extent the offence is bailable and the petitioner is entitled to be released on bail as of right. It was further submitted that a plant to come within the definition of a cannabis plant, it is to be shown that the plant was having flowering or fruiting tops, but in the present case from the averments made in the FIR and the evidence collected during the course of investigation, it is not the case of the prosecution itself that the plants allegedly found cultivated in the field of the petitioner were having such tops and in absence thereof it cannot be said that the plants recovered from the possession of the petitioner are cannabis plants coming within the purview of the provisions of the NDPS Act. It was also submitted that unless it is specifically opined by the FSL in the report that the plants sent for analysis were bearing flowering or fruiting tops of the cannabis, the same cannot be treated to be cannabis plants at this stage of the proceedings. Relying upon the copy of revenue record filed alongwith the petition, it was submitted by the learned counsel for the petitioner that the agriculture land bearing Khasra No.618 in which the cannabis plants are allegedly found to have been cultivated is a pasture land belonging to the State of Rajasthan and, therefore, it cannot be said that the petitioner cultivated the same or they were in the exclusive possession of the petitioner. It was also submitted that the petitioner is an old person of the age of 75 years and the offence, for which he has been accused, no minimum sentence has been prescribed.
In support of his submissions, learned counsel for the petitioner relied upon the case of Navia Vs. State of Rajasthan reported in 2005(1) RCC 523 and Mahaveer Prasad Vs. State of Rajasthan reported in 2008(2) RCC 681.
On the other hand, learned Public Prosecutor submitted that the land in which the cannabis plants were found to be cultivated belongs to the petitioner and at the time of recovery the petitioner was personally present. It was further submitted that for a plant to come within the purview of cannabis plant, it is not essential that it must bear flowering or fruiting tops and in absence of the same also, the plant shall be treated to be a cannabis plant. It was also submitted that cultivation of cannabis plant is also prohibited and it is separately punishable.
I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the evidence collected during the course of investigation, which has been produced before me by way of case diary, and also the relevant provisions and the case law.
The main question involved in this case is whether a plant can come within the purview of cannabis plant only when it bears flowering or fruiting tops. As per Clause (iv) of Section 2 of the Act, cannabis plant means any plant of the genus cannabis. The definition of cannabis plant as given under this provision does not say that a plant can be treated to be a cannabis plant only when it bears flowering or fruiting tops. There is nothing in the provision that a plant would take shape of a cannabis plant only when it bears flowering or fruiting tops. 'Ganja' has been defined under sub-clause (b) of Clause (iii) of Section 2 of the Act and according to this provision 'ganja' is 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. It is thus clear that cannabis plant and 'ganja' are two separate entities. According to these provisions, the flowering and fruiting tops of the cannabis plant are 'ganja' but that does not mean that a plant can be treated to be a cannabis plant only when it bears flowering or fruiting tops. According to the definition of 'ganja', seeds and leaves of cannabis plant does not come within the purview of 'ganja', but if the seeds and leaves of such plant are mixed with flowering or fruiting tops, such mixture would be treated to be 'ganja'. In my opinion a plant of genus cannabis with or without flowering or fruiting tops is a cannabis plant and, therefore, even if for the sake of arguments, in absence of FSL report, at this stage of the proceedings, it is admitted that the plants which were found to be cultivated and which have been recovered were not bearing flowering or fruiting tops even then the same would be treated to be cannabis plants.
As per the Clause (b) of Section 8 of the Act, no person shall cultivate any cannabis plant except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization. It is thus clear that cultivation of cannabis plant is prohibited. It is not the case of the petitioner that he obtained license or permit or authorization from a competent authority to cultivate the cannabis plants for medical or scientific purposes. It is to be noted that vide notification dated 30.5.1989, the Central Government has prohibited cultivation of cannabis plant for the production of 'ganja' or for any purpose other than medical or scientific purpose as required under Proviso to Section 8 of the Act. As per Clause (a) of Section 20 of the Act, whoever in contravention of any provision of the Act or any rule or other made or condition of license granted thereunder cultivates any cannabis plant shall be punishable with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine which may extend to Rs.1 lac. According to this provision, cultivation of cannabis plant is punishable to the aforesaid extent. It is to be noted that punishment for cultivation of cannabis plant does not depend on the quantity or number of plants cultivated as in the case production, manufacture, possession, sale, purchase, transportation, import and export of cannabis, in which the sentence is dependent upon the quantity of the cannabis as provided under sub-clause (ii) of Clause (b). According to this provision in my opinion, even cultivation of one plant of cannabis is punishable for sentence of rigorous imprisonment for a term which may extend to 10 years and fine which may extend to one lakh rupees.
So far as the agriculture land in which the cannabis plants were allegedly found to be cultivated is a pasture land belonging to the State Government bearing Khasra No.618 is concerned, there is nothing in the FIR and the evidence collected during the course of investigation showing that the plants were found cultivated in the aforesaid land. According to the prosecution, the land in which the aforesaid plants were found to be cultivated is in the form of a small garden belonging to the petitioner and trees of many other varieties were also found to be grown in the same. Otherwise also, it is a question of fact which can be decided by the trial Court after parties led their evidence during the course of trial.
In view of the above and more particularly looking to the number of cannabis plants found to be cultivated, but without expressing any opinion on the merit and demerit of the case, I am not inclined to grant benefit of bail to the accused-petitioner at this stage of the proceedings.
Consequently, the bail application is dismissed.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-
Reserved.
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