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2026 Supreme(Online)(Raj) 12250
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
Nupur Bhati, J
Gopi – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Criminal Miscellaneous Bail Application No. 3440/2026
For the Appellants/Petitioners: Bharat Gurjar
For the Respondents: U.R. Kalbi
The embargo on bail under Section 37 of the NDPS Act does not apply to the offence of cultivating opium poppy, as there is no notification specifying a 'commercial quantity' for such cultivation, thus placing the offence under Section 18(c).
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 18 and 20 - Bail Application - Cultivation of opium poppy and ganja plants - Whether Section 37 embargo applies - The notification specifying commercial quantity does not prescribe a defined amount for the cultivation of opium poppy, categorizing it under Section 18(c) - Consequently, the restrictions under Section 37 of the NDPS Act regarding bail for offences involving commercial quantity are not attracted for cultivation offences. (Paras 4, 5)
Facts of the case:
The petitioner was arrested for allegedly cultivating 408 opium poppy plants and 60 ganja plants on his land. The petitioner sought regular bail, contending that he was falsely implicated and that the statutory restrictions on bail under the NDPS Act do not apply to the specific offence of opium poppy cultivation.
Findings of Court:
The court observed that the cultivation of opium poppy is not assigned a specific commercial quantity in the relevant government notification, and therefore, the offence falls under Section 18(c) of the NDPS Act. As such, the strict condition of Section 37 of the Act does not bar the grant of bail. Given that the trial may take significant time and the petitioner lacks prior criminal antecedents of a similar nature, the court allowed the bail application.
Issues: Whether the mandatory bail restrictions under Section 37 of the NDPS Act apply to the cultivation of opium poppy plants.
Ratio Decidendi: Since the law and relevant notifications do not categorize the cultivation of opium poppy plants as an offence involving a 'commercial quantity', the embargo under Section 37 does not apply to such bail applications, allowing for the exercise of judicial discretion.
Result: Bail application allowed.
| Table of Content |
|---|
| 1. bail application regarding offences under the ndps act for cultivation. (Para 1 , 2) |
| 2. non-applicability of section 37 embargo due to lack of commercial quantity notification for cultivation. (Para 3 , 4) |
| 3. grant of bail based on absence of prior antecedents and evidentiary limitations. (Para 5 , 6 , 7) |
Order
1. The instant bail application has been filed by the petitioner under Section 483 BNSS who has been arrested in connection with the FIR No.50/2026 dated 08.03.2026 registered at the Police Station Kareda District Bhilwara for the offence under Section 8/18 and 20 of the NDPS Act.
2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this case while alleging that the petitioner was found cultivating total of 408 opium and 60 ganja plants, weighing 14 kg 580 gms (opium plants) and 21 kg 220 gms (ganja plants), in the agricultural field belonging to him.
3. In support of his contention, counsel has placed reliance upon the order of this Court dated 01.05.2025 passed in SBCRLMB No.5293/2024 : “ Vala Ram v. State of Rajasthan ”, Relevant portion of the said order is reproduced hereunder:
“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 beingcultivated 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 cr
