The court determined that improper weighing of ganja plants resulted in a quantity below the commercial limit, allowing bail despite NDPS Act restrictions.

Order :

This application for bail under Section 439 Cr.P.C . has been filed by the petitioner who has been arrested in connection with F.I.R. No.23/2025 registered at Police Station Nithuwa district Dungarpur, for the offence under Sections 8/20 of NDPS.

2. As per the prosecution, acting upon a secret information, a team of Police Station Nithuwa raided the field belonging to the present petitioner situated adjacent to his house and found ganja plants growing therein. The petitioner was arrested on the spot.

3. Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the present case. Learned counsel submitted that the recovery of the contraband was of ganja plants growing on the agricultural field, thus, conscious possession of the petitioner cannot be deduced. It was also submitted that as the whole plants were weighed without removing the stems, roots, leaves etc., the said recovery amounts to an offence under section 20 (a) of NDPS act for which no commercial quantity has been prescribed. Therefore, the embargo contained under Section 37 would not be attracted.

4. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody; no case of similar nature is pending against the petitioner; the trial of the case will take sufficiently long time to conclude, therefore, the benefit of bail may be granted to the accused-petitioner.

5. Per contra, learned Public Prosecutor has vehemently opposed the bail application.

6. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

7. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the case of the prosecution is that the petitioner was cultivating ganja plants in his fields and the quantity of the recovered plants is well above the commercial limit specified for contraband ganja.

8. 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 the commercial quantity specified therein for ganja is 20 kgs. For the purpose of determining the total weight of the recovered contraband ganja in the present case, 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 NDPS Act. As there was no bifurcation of seeds and leaves from the flowering or fruiting tops before weighing the recovered contraband. Thus, 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.

9. The cultivation of "any cannabis plant" is prohibited and made an offence under sub-clause (b) of Section 8 of the NDPS Act. Further, it is imperative to mention Section 20 of the NDPS Act, which discusses the punishment for contravention in relation to cannabis plant and cannabis. Section 20 of the NDPS Act reads as follows:-

“20. Punishment for contravention in relation to cannabis plant and cannabis.-

Whoever, in contravention of any provisions 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

(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