Rajasthan High Court – Jodhpur
Hazi Ram vs State Of Rajasthan (2026:Rj-Jd:17228) on 13 April, 2026
Author: Nupur Bhati
Bench: Nupur Bhati
[2026:RJ-JD:17228]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3423/2026
Hazi Ram S/o Nanji Ram, Aged About 43 Years, R/o Maliyo Ka
Bas, Dhumbaliya, Bagods Police Station At Present Kankhi
Sivana Police Station District Balotra (Lodged In Distt. Jail,
Balotra)
----Petitioner
Versus
State Of Rajasthan, Pp
----Respondent
For Petitioner(s) : Mr. K.L. Vishnoi
For Respondent(s) : Mr. H.S. Jodha, PP
HON'BLE DR. JUSTICE NUPUR BHATI
Order
13/04/2026
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.41/2026 dated 20.02.2026 registered at the Police
Station Garhi District Banswara for the offence under Section 8/18
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 cultivating opium plants in his agricultural field and
a total of 2428 plants of opium weighing 71.00 kgms were
recovered thereof.
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(Uploaded on 13/04/2026 at 02:30:09 PM)
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[2026:RJ-JD:17228] (2 of 7) [CRLMB-3423/2026]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 110×57 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 crops of opium
and plants of chicory and fennel were planted on either
sides of the opium cultivation. The Halka Patwari present
at the spot informed that the land is Khasra No. 224 and
that the petitioner has been illegally encroaching upon
the land of one Babulal since past 25 years. The people
nearby also affirmed that the opium cultivation belonged
to Bhajan Lal and that he does not have any license.
Upon questioning, Bhajan Lal confirmed that he does not
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have any license for opium cultivation. As per provisions
of NDPS Act, photographs were clicked and all the opium
plants were uprooted from the grounds along with the
roots and 36 piles were made. Two samples of 1 kg each,
marked A (chemical sample) and B (control sample),
were taken from the seized plants for investigation.
3. Learned counsel for the petitioner submits that a
false case has been foisted against the petitioner and he
has nothing to do with the alleged offence. The petitioner
is booked for offence of cultivation of opium poppy which
is covered under Section 8(b) of the NDPS Act. Section
18, which discusses the punishment for contravention in
relation to opium poppy and opium, prescribes
punishment for small quantity in sub-clause (a), for
commercial quantity in sub-clause (b) and all other cases
are covered under sub-clause (c). In the present case,
the penal provision applicable to the petitioner is sub-
clause (c) of Section 18 as there is no specific quantity
which has been defined in the Act for cultivation of opium
poppy rather Note no. 3 appended to the notification
specifying small and commercial quantity S.O. 1055 (E)
dated 19th October, 2001 published in the Gazette of
India, Extra., Pt. II Sec. 3(ii) dated 19th October, 2001
states that ” Note 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″. The
embargo contained in Section 37 is not attracted as there
is no question of commercial quantity in the present case.
Similar consideration in detail has been made by this Court in
the case of Vinod Kumar Vs. State of Rajasthan bail
application being SBCRLMB No.9279/2022 decided on
07.07.2022. The para Nos. 4 & 5 are reproduced here 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 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 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
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[2026:RJ-JD:17228] (4 of 7) [CRLMB-3423/2026]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
subclause (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 inter-State, 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),–
(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, withrigorous
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 lessthan 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).
iv) Grant of bail for offences stipulated in the N.D.P.S.
Act is interdicted by the provisions of Section37. 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.2676/2022titled
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
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”
So also in the case of Kallu Nath Vs. State of Rajasthan being
S.B. Criminal Misc. IV Bail Appln. No.2676/2022 decided on
27.05.2022.
4. Heard learned counsel for the parties. Perused the
material available on record. The case of the
prosecution is that the recovered contraband, i.e. opium
poppy plants that were being cultivated, qualify as
contraband of commercial quantity. Sub- clause (viia) of
Section 2 of the NDPS 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 Note no. 3 appended to the notification
“Note 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″. As per
the Notification, there is no defined amount for
cultivation of opium poppy that can be treated as either
small or commercial quantity. Section 18 of the NDPS
Act, which discusses the punishment for contravention
in relation to opium poppy and opium, prescribes
punishment for small quantity in sub-clause (a), for
commercial quantity in sub-clause (b) and all other
cases are covered under sub-clause (c). The offence of
cultivation of opium poppy is prohibited under sub-
clause (b) of Section 8. Thus, the corresponding
punishment-prescribing provision for offence under
Section 8(b) would be Section 18(c). Grant of bail for
offences stipulated in the NDPS 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. The offence in the
present case is not covered by Sections 19, 24 or 27A
and the commercial quantity for cultivation of opium
poppy is not defined. Therefore, it can be safely inferred
from the above observations that the restriction
contained under Section 37 on provision of bail will not
operate in the present case.
5. Considering the observations made herein above and
looking to the possibility that the trial may take long
time to conclude, this court deems it just and proper to
enlarge the petitioner on bail. It is to be clear that the
observations made in the present order shall not
influence the trial judge in any manner and are limited
to the justifiable disposal of this bail application only.
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As considered above, in the given circumstances, the embargo
of Section 37 of the NDPS Act would not come in the way of
granting bail to the petitioner.”
4. Counsel for the petitioner, further submits that thus, the
embargo contained under Section 37 of the NDPS Act, is not
attracted in the present case. He also submits that the petitioner
has one prior criminal antecedents of similar nature in which, the
petitioner has been acquitted vide order dated 20.04.2022 passed
by learned Special Judge, NDPS Cases, Pratapgarh, in Case
No.06/2018 and thus, the petitioner deserves to be released on
bail.
5. Per contra, learned Public Prosecutor opposes the bail
application and submits that it is not a fit case to grant indulgence
of bail to the petitioner, however, is not in a position to refute the
fact that the embargo contained under Section 37 of the NDPS Act
are not attracted in the present case and also the fact that
petitioner has one prior criminal antecedent of similar nature, in
which, the petitioner has been acquitted of the charges.
6. Having considered the submissions advanced at Bar by
learned counsel for the parties and having regard to the entirety
of facts and circumstances of the case as available on record; and
looking to the fact that trial will take a long time to conclude and,
without expressing any opinion on the merits/demerits of the
case, this Court deems it fit to enlarge the petitioner on bail.
7. Consequently, the bail application is allowed. It is ordered
that the accused petitioner Hazi Ram S/o Nanji Ram arrested in
connection with FIR No.41/2026 dated 20.02.2026 registered at
the Police Station Garhi District Banswara, shall be released on
bail; provided he furnishes a personal bond in the sum of
Rs.50,000/- and two sureties of Rs.25,000/- each to the
satisfaction of the learned trial Court, with a stipulation to appear
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before that Court on all dates of hearing and as and when called
upon to do so.
(DR.NUPUR BHATI),J
74-/Devesh/-
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