The prohibition under Section 37 of the NDPS Act does not apply if the offence does not involve commercial quantity, allowing for bail.

                                                                                                                                                                   Order

14/01/2025

1. These applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with F.I.R. No.163/2024 registered at Police Station Pindwara, District Sirohi, for the offence punishable under Section 8/20 of the NDPS Act.

2. Learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the present case. As per the prosecution, acting upon a secret information, a team of Police Station Pindwada raided the fields near Mauja Janapur Kojda Road and found 800 ganja plants inside two fields owned by the Shri Laxman and Shri Ajmera.

3. Learned counsel for the petitioners submitted that the recovery of the contraband was from ganja plants growing on the agricultural field, thus, conscious possession of the petitioners cannot be deduced. It was also submitted that as the whole plants were weighed without removing the stems, roots, leaves etc., the total weight of the 350 recovered plants of ganja recovered from the field cultivated by the petitioner- Vaktaram, i.e. 22.4 kilograms, can be safely assumed to be below the commercial quantity. Therefore, the embargo contained under Section 37 would not be attracted.

4. Lastly, learned counsel for the petitioners submitted that the petitioners are in judicial custody; challan has already been filed and the trial of the case will take sufficiently long time to conclude, therefore, the benefit of bail may be granted to the accused-petitioners.

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

6. Heard learned counsel for the petitioners 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 faice finds that the case of the prosecution is that the petitioners were cultivating ganja plants in their 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, 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 in