The court held that the absence of a defined commercial quantity for opium cultivation under the NDPS Act allows for bail, as Section 37's restrictions do not apply.

Order

13/05/2025

1. The instant misc. bail application has been filed by the petitioner, who is in custody in connection with the FIR No.44/2025 dated 10.03.2025, registered at Police Station Kherapa District Jodhpur (Rural), for the offence punishable under Section 8/18 of the NDPS Act.

2. The case of the prosecution is that on 10.03.2025 at around 2.10 PM, upon receiving an information, the SHO Police Station Kherapa, Jodhpur (Rural) along with his team reached at Baoli Chhabo ki Dhani near the tubewell of Baoli of the accused petitioner-Ladu Ram and upon search being made, it was found that the petitioner was cultivating plants of opium which were 2200 in numbers with height around 2^1/2 feet. The petitioner was arrested thereupon.

3. Learned counsel for the petitioner submits that the offence alleged against the petitioner is covered under Section 8 (b) of the NDPS Act which is punishable under Section 18. He further submits that since in the present case, the police had recovered opium plants, the punishment for cultivating the same would fall under sub-Clause (c) of Section 18 of the NDPS Act, as no commercial or small quantity has been prescribed for poppy/opium plants. Learned counsel further submits that the Coordinate Benches of this Court in SBCRLMB Nos.5293/2024 and 2687/2025, while taking into consideration Section 18 of the NDPS Act, have held that in such cases, rigors of Section 37 of the NDPS Act does not apply. The relevant portion of said orders are reproduced as under:-

In SBCRLMB No.2687/2025:-

“xxxxxx 7. This Court is conscious of the S.O. 1055 (E) dated 19.10.2001 published in the Gazette of India, Extra., Pt.II Section 3(ii) dated 19.10.2001 and Note no.3 appended to the table thereto, which provides:

“3. “Small Quantity” and “Commercial Quantity” with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.”

8. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that since the offence in the present case is not punishable under Sections 19, 24 and 27A and neither any commercial quantity has been prescribed for the cultivation of poppy plants as per the notification as stated above; and particularly since the prosecution has not shown any apprehension of the petitioners tampering with the evidence or involving themselves in cases of similar nature in case they are enlarged on bail, therefore the embargo contained in Section 37 is not applicable in the present case. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioners on bail. xxxxxxxx”

In SBCRLMB No.5293/2024:-

“xxxxxx 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 8/18NDPS 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.