HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc. Second Bail Application No. 15600/2024 Brijesh @ Bunty S/o Prem Lal, R/o Village Khawaspura, Police Station Dooni, District Tonk (Raj.) (The Accused Applicant Is In Judicial Custody In District Jail, Bundi). ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Swadeep Singh Hora Mr. Sahajveer Baweja Mr. Siddhant Choudhary For Respondent(s) : Ms. Manju Dave, PP HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 17/01/2025 1. The first bail application of the accused-petitioner was dismissed by this Court vide order dated 26.07.2024. Thus, this second bail application has been preferred under Section 483 B.N.S.S. on behalf of the accused-petitioner. The accused- petitioner has been arrested in connection with FIR No.88/2024 registered at Police Station Dablana, District Bundi, for the offence(s) under Section 8/20 of NDPS Act. 2. Learned counsel for the petitioner submits that the accused- petitioner has falsely been implicated in the case. He submits that the first bail application of the accused-petitioner was dismissed by this court vide order dated 26.07.2024. He further submits that the charge-sheet has been filed before the concerned Court. It is contended that in the FSL report, it is clearly shown that the (2 of 6) [CRLMB-15600/2024] packet marked-A, which was sent for forensic analysis containing brownish green coloured dry vegetative matter consisting of flowering, fruiting tops and their fragments packed in polythene bag. it is also contended that in the seizure report also, it is categorically mentioned that from the possession of the accused- petitioner a plastic bag was recovered containing seeds, leaves, stem and stalks of cannabis plants. It is also contended that the weight of the recovered substances were 21 kg and 50 grams, the commercial quantity of Ganja as mentioned in the schedule under NDPS Act is 20 kgs. It is also contended that as per definition of "Ganja" defined under Section 2 of NDPS Act, only the flowering or fruiting tops of the cannabis plants is within the definition of Ganja, excluding the seeds and leaves of cannabis plants. It is also contended that the co-ordinate Bench in the matter of Anil vs. State of Rajasthan in S.B. Criminal Misc. Second Bail Application No.16041/2022, Sampat Lal Gurjar vs. State of Rajasthan in S.B. Criminal Misc. Second Bail Application No.11901/2024, Rameshwar vs. State of Rajasthan in S.B. Criminal Misc. Second Bail Application No.1107/2024 and Vinod Kumar vs. State of Rajasthan in S.B. Criminal Misc. Bail Application No.9279/2022, after considering the definition of "Ganja" provided under NDPS Act, allowed the bail applications and the case of the present accused-petitioner is squarely covered with the persons who have enlarged on bail by the co- ordinate Bench in the above matters. It is also contended that there are no other cases of similar nature pending against the accused-petitioner, the criminal antecedents shown against the accused-petitioner pertains to offences under Sections 341, 323 (3 of 6) [CRLMB-15600/2024] and 324 of IPC. The accused-petitioner is in custody since 02.04.2024, trial/investigation of the case will take considerable time, therefore, the second bail application of the accused- petitioner may be allowed. 3. Learned Public Prosecutor vehemently opposes the second bail application. 4. Heard learned counsel for the accused-petitioner and learned Public Prosecutor and perused the material available on record as well as the judgments/orders relied upon by learned counsel for the petitioner. 5. The Coordinate Bench in Vinod Kumar (supra) also held as under: "4. Heard learned counsel for the parties. Perused the material available on record. i) The case of the prosecution is that the petitioner was cultivating ganja plaints 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 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 NDPS Act defined "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. 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 (4 of 6) [CRLMB-15600/2024] 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 and700 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, 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:- 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 there under,- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— (i) where such contravention relates to clause (a) with rigorous imprisonment for term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),— (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; (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; (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: (5 of 6) [CRLMB-15600/2024] Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 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 Section20. 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 punishment-prescribing provision for offence under Section 8(b), relating to cannabis plant, would be Section 20(a)(i). iv)Grant of bail for offences stipulated in the N.D.P.S. Act is interdicted by the provisions of Section 37.Section 37states 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, 24or 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. 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 opium poppy, bail was granted to the accused as the impediment contained in Section37 of N.D.P.S. Act was not attracted." 5. Having regard to the facts and circumstances of the case and in view of the orders/judgments passed by this Court, without commenting anything on the merits of the case, I deem it just and proper to enlarge the accused-petitioner on bail. (6 of 6) [CRLMB-15600/2024] 6. Accordingly, the second bail application under Section 483 B.N.S.S. is allowed and it is ordered that the accused-petitioner Brijesh @ Bunty S/o Prem Lal in connection with FIR No.88/2024 registered at Police Station Dablana, District Bundi, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- 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. (PRAVEER BHATNAGAR),J DEEPA RANI -19