[2026:RJ-JP:587] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous Bail Application No. 16113/2025 Harikesh S/o Ganpat, R/o Bhainsavata Khurd, Police Station Singhana, District Jhunjhunu (Raj.). (At Present Accused Petitioner Confined In District Jail Jhunjhunhu). ----Accused-Petitioner Versus State Of Rajasthan, Through PP ----Respondent For Petitioner(s) : Mr. Vidhut Kumar Gupta, Adv. For Respondent(s) : Mr. Amit Punia, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 08/01/2026 1. This bail application under Section 483 BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.233/2025 registered at Police Station Singhana, District Jhunjhunu for offence punishable under Section 8/20 of the NDPS Act. After completion of investigation, police filed charge-sheet in this matter. 2. It is contended by learned counsel for the petitioner that the accused-petitioner has falsely been implicated in this case. He submits that the cultivation of "any cannabis plant" is prohibited and made an offence under Section 8 of the NDPS Act whereas Section 20 of the N.D.P.S. Act discusses punishment for contravention in relation to cannabis plant and cannabis. He submits that as per the prosecution case, the petitioner was cultivating ganja plants in his field and total 512 plants weighing 37.800 kgs were recovered from his field. He contends that for the [2026:RJ-JP:587] (2 of 7) [CRLMB-16113/2025] 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 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. However, there was no bifurcation of seeds and leaves from the flowering or fruiting tops before weighing the recovered contraband. He submits that possibility cannot be ruled out that if only the flowering and fruiting tops are weighed it will fall under the category of below commercial quantity. It is submitted that there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion. Counsel further submits that the petitioner is an old person who is aged about 80 years and he is in custody since 21.08.2025. Further custody of the petitioner would not serve any fruitful purpose. 3. Learned Public Prosecutor opposes the submissions made by the learned counsel for the petitioner and submits that 512 ganja plants weighing 37.800 kgs have been recovered from the field of the petitioner which falls under the category of commercial quantity. Thus, looking to the rigour of Section 37 of the NDPS Act, benefit of bail should not be extended to the petitioner. However, he fairly concedes that while determining the total weight of the recovered contraband, whole plants were taken into consideration, including the seeds, roots, stems and leaves, along with the soil. [2026:RJ-JP:587] (3 of 7) [CRLMB-16113/2025] 4. I have considered the submissions made by both the parties and have perused the material available on record. The Co- ordiante bench of this Court has dealt with the issue related to the present bail application in the case of Vinod Kumar S/o Laxman @ Laxmi Narayan versus State of Rajasthan passed on 07.07.2022 in S.B. Criminal Misc. Bail App. No.9279/2022. The relevant part of the said order is reproduced as under:- “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 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. 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 [2026:RJ-JP:587] (4 of 7) [CRLMB-16113/2025] 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, 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 thereunder,-- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports interState, exports inter-State or uses cannabis, shall be punishable,-- (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 (ii) where such contravention relates to sub clause (b),-- [2026:RJ-JP:587] (5 of 7) [CRLMB-16113/2025] (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: 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 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 punishment-prescribing provision for offence under Section 8(b), relating to cannabis plant, would be Section 20(a)(i). [2026:RJ-JP:587] (6 of 7) [CRLMB-16113/2025] 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.” 5. The case referred above relates to recovery of Cannabis plant and same is the case here where certain quantity of Cannabis plants alleged to have been recovered. As mentioned in the case referred supra, the punishment for contravention in relation to Cannabis plant falls under Section 20 Sub-Clause (a)(i) of the NDPS Act, as per which, the maximum punishment can be upto ten years and meaning thereby the embargo contained under Section 37 of the NDPS Act does not apply in such cases. It is further significant to note that the definition of ‘ganja’ under NDPS Act takes in its ambit only the flowering or fruiting tops of cannabis plant and excludes the seeds and leaves when not accompanied by the tops. Thus, the definition of ‘ganja’ is restricted and it does not include the seeds and leaves of ganja plant. 6. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the petitioner, especially considering the manner in which contraband has been weighed, as also the fact that there [2026:RJ-JP:587] (7 of 7) [CRLMB-16113/2025] are no criminal antecedents against the petitioner, so also the fact that petitioner is an old person aged about 80 years and trial will take considerable time in its conclusion as well as looking to the custody period, but without commenting anything on the merits/demerits of the case, I deem it proper to allow the bail application. 7. This bail application is accordingly allowed and it is directed that accused-petitioner- Harikesh S/o Ganpat, R/o Bhainsavata Khurd shall be released on bail provided he furnishes a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lakhs Only) together with two sureties in the sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) each to the satisfaction of the learned trial Court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. 8. It is made clear that the accused-petitioner shall not involve in any other offence(s) during currency of the bail. 9. If any breach of this condition is reported or come to the notice of the Court, the same shall alone be a reason for the trial Court to cancel the bail granted to the petitioner by this Court. 10. The observations made hereinabove are only for decision of the bail application and would not have any impact on the trial of t the case in any manner. (ANIL KUMAR UPMAN),J MADAN/178