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 doe