The court ruled that restrictions under Section 37 of the NDPS Act do not apply when no defined quantity for commercial classification exists, allowing bail.

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. 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 S.B. Criminal Misc. Fourth Bail Application 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 stage of harvesting. Police officials went to the spot and found a 4-metre mud boundary encapsulating the crops of opium and plants of chicory and fennel were planted on either sides of the opium cultivation. The Halka Patwari present at the spot informed that the land is Khasra No. 224 and that the petitioner has been illegally encroaching upon the land of one Babulal since past 25 years. The people nearby also affirmed that the opium cultivation belonged to Bhajan Lal and that he does not have any license. Upon questioning, Bhajan Lal confirmed that he does not have any license for opium cultivation. As per provisions of NDPS Act, photographs were clicked and all the opium plants were uprooted from the grounds along with the roots and 36 piles were made. Two samples of 1 kg each, marked A (chemical sample) and B (control sample), were taken from the seized plants for investigation.

3. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner and he has nothing to do with the alleged offence. The petitioner is booked for offence of cultivation of opium poppy which is covered under Section 8(b) of the NDPS Act. Section 18, 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) and all other cases are covered under sub-clause (c). In the present case, the penal provision applicable to the petitioner is sub-clause (c) of Section 18 as there is no spec