Allowed

Geba v. State of Rajasthan

Rajasthan HC6 Mar 2024CRLMB/129/2024

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a bail application filed under Section 439 CrPC. The petitioner was accused of cultivating 82 ganja plants weighing less than commercial quantity. The court held that Section 37 of the NDPS Act did not apply, granting bail with a personal bond and sureties.

What did the court decide?

Petitioner enlarged on bail providing a personal bond of Rs.50,000 with two sureties of Rs.25,000 each.

Geba Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 129/2024

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Geba S/o Shri Nanga, Aged About 30 Years, R/o Village Morila, Holi Fala, P.s. Salumbar, Dist. Salumbar (Rajasthan). (Presently Lodged In Dist. Jail, Salumbar).

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s)	: Mr. Shambhoo Singh Rathore
For Respondent(s)	: Mr. A.R. Choudhary,PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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06/03/2024

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The jurisdiction of this court has been invoked by way of filing an application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

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S.No.	Particulars of	the Case
1.	FIR Number	255/2023
2.	Concerned Police Station	Salumber
3.	District	Salumber
4.	Offences alleged in the FIR	Section 8/20 of the NDPS Act
5.	Offences added,if any	-
6.	Date of passing of impugned order	22.12.2023

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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-

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petitioner and he has been made an accused based on conjectures and surmises.

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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.

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Have considered the submissions made by both the parties. Perused the challan papers and other material available on record. 5. Perusal of the material revealing that the petitioner is in custody in this case for the accusation that 82 plants of Ganja were recovered from an agricultural field of which he was having possession. The total weight of all the plants was 60 Kg. 400 gms. 6. It is evident from the definition Clause given in the NDPS Act that only the flowering and fruiting tops of the “Cannabis (hemp)” plants is termed as Ganja. The leaves of the said plant comes within the definition of “Bhang”, which is an excise-able article. The other view is that for cultivation of hemp plant, the rigor of Section 37 of the NDPS Act is not applicable. This Court has dealt with the issue in the matter of Vinod Kumar Vs. State of Rajasthan in S.B. Criminal Bail Application No.9279/2022 decided on 07/07/2022. The relevant part of the order is reproduced as under:-

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i) The case of the prosecution is that the petitioner was cultivating ganja plants in his field and the quantity of the recovered plants is well above the commercial limit specified for contraband ganja. Section 2 of the NDPS Act contains the definitions and clause (iii) of the same defines what "cannabis (hemp)" means, through three

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sub-clauses. The sub-clause (b) of clause (iii) defines 'ganja' as "the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated". Sub-clause (viia) of Section 2 of the N.D.P.S. Act defines “commercial quantity” as any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette, in relation to narcotic drugs and psychotropic substances. 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.

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ii) As averred, 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 N.D.P.S. Act. As there was no bifurcation of seeds and leaves from the flowering or fruiting tops before weighing the recovered contraband and the total weight of the recovered contraband is just 2 kgs and 700 gms above the commercial quantity, 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. iii) The cultivation of "any cannabis plant" is prohibited and made an offence under sub-clause (b) of Section 8 of the N.D.P.S. Act. Further, it is imperative to mention Section 20 of the N.D.P.S. Act,

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which discusses the punishment for contravention in relation to cannabis plant and cannabis. Section 20 of the N.D.P.S. Act reads as follows:-

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20. Punishment for contravention in relation to cannabis plant and cannabis.— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

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(a) cultivates any cannabis plant; or

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(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—

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(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; and

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(ii) where such contravention relates to subclause (b),—

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(A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

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(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

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(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

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Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

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Contravention of provisions of the N.D.P.S. Act by cultivation of any cannabis plant is covered in clause (a) of Section 20 and contravention by production, manufacture, possession, sale, purchase, transportation, import inter-state, export inter-state or use of cannabis is covered under clause (b) of Section 20. For the contravention contained in clause (b), punishments have been particularised as per the quantities, namely small, intermediate and commercial quantities in sub-clause (i) but for the contravention contained in clause (a), maximum punishment for a term of ten years rigorous imprisonment has been prescribed without any specification of quantities. Thus, the corresponding punishmentprescribing provision for offence under Section 8(b), relating to cannabis plant, would be Section 20(a)(i).

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iv) Grant of bail for offences stipulated in the N.D.P.S. Act is interdicted by the provisions of Section 37. Section 37 states that any person who is accused of an offence under Sections 19, 24 or 27A and of an offence involving commercial quantity cannot be granted bail. Neither the offence in the present case is covered by Sections 19, 24 or 27A of the N.D.P.S. Act and nor does the recovered ganja fall in the category of commercial quantity. Therefore, it can safely be inferred from the above observations that the petitioner need not face the rigour of Section 37 with regard to provision of bail in the present case.

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v) This Court has passed a detailed order in S.B. Criminal Misc. IV Bail Application No.2676/2022 titled Kallu Nath v. State of Rajasthan, wherein in a similar matter relating to cultivation of

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opium poppy, bail was granted to the accused as the impediment contained in Section 37 of N.D.P.S. Act was not attracted. 5. Considering the arguments advanced by the counsel for the parties, looking to the over all facts and circumstances of the case and the dicta contained in the judgment passed in Kallu Nath (supra), this court deems it just and proper to enlarge the petitioner on bail.

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6. Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner, named above, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.”

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In view of the above and looking to the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter.

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Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

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(FARJAND ALI),J

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65-Mamta/-

Geba v. State of Rajasthan

Case brief

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Geba v. State of Rajasthan

Case brief

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