IMPORTANT POINT
The absence of a defined quantity for the cultivation of opium poppy under the NDPS Act allows for the granting of bail, as the restrictions of Section 37 do not apply in such cases.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this court has been invoked by way of filing the second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

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 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. 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 arrested and after usual investigation, he was charge-sheeted for committing offence under Section 8/18 NDPS 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 SBCRLM4thB 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 st