The Rajasthan High Court has clarified that bail cannot be denied under Section 37 of the NDPS Act solely on the basis of total plant weight if non-active plant components are included in the measurement. The Court found that the actual quantity of ganja recovered fell below the commercial threshold due to improper weighing methodology, thereby removing the bar on bail.
The Verdict
The petitioner won. The Rajasthan High Court granted bail to an accused charged under Section 8/20 of the NDPS Act for cultivating cannabis, holding that the recovered weight of ganja - 25.950 kg - could not be treated as commercial quantity because it included stems, roots, leaves, and soil. The Court ruled that only flowering or fruiting tops qualify as ganja under the Act, and since the weight fell below the 20 kg commercial threshold after proper exclusion, Section 37’s bail bar did not apply. The petitioner was released on personal and surety bonds.
Background & Facts
The petitioner, Nana S/o Dubla, was arrested in connection with F.I.R. No. 213/2025 registered at Police Station Kalinjara, District Banswara, for cultivating cannabis plants. Authorities recovered approximately 25.950 kilograms of ganja, measured as entire plants including stems, roots, leaves, and soil. The prosecution treated this total weight as sufficient to constitute a commercial quantity under the NDPS Act, triggering the stringent bail restrictions under Section 37. The petitioner was denied bail in the trial court and filed a bail application under Section 483 of the BNSS before the Rajasthan High Court.
The petitioner’s counsel relied on multiple precedents from the same High Court where bail had been granted in similar cases involving cultivation of cannabis where the weight did not meet the commercial threshold after proper interpretation of the definition of ganja. The prosecution opposed the application, arguing that the total recovered quantity was above 20 kg and therefore fell within the ambit of commercial quantity, making bail ineligible under Section 37.
The Court examined the seizure report and the methodology used for weighing the contraband. It noted that no effort had been made to separate the active parts of the plant - flowering or fruiting tops - from the inedible or non-narcotic components.
The Legal Issue
The central question was whether the entire weight of cannabis plants, including stems, roots, leaves, and soil, can be counted toward determining commercial quantity under the NDPS Act for the purpose of invoking Section 37’s bail restrictions. If not, does the reduced weight fall below the 20 kg threshold, thereby making bail permissible?
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the definition of ‘ganja’ under Section 2 of the NDPS Act explicitly refers to the flowering or fruiting tops of the cannabis plant. He cited Notification S.O. 1055(E) dated 19 October 2001, which sets the commercial quantity for ganja at 20 kg, and emphasized that judicial precedents from the same High Court consistently held that only the active parts must be weighed. He further contended that including non-narcotic components like soil and roots artificially inflates the weight and violates the principle of fair interpretation of penal statutes. Reliance was placed on five prior bail orders from the Rajasthan High Court where similar factual matrices led to bail being granted.
For the Respondent
The Public Prosecutor argued that the total weight recovered was above the statutory limit of 20 kg and that the law does not require bifurcation at the stage of arrest or seizure. He contended that the burden of proving the actual quantity of active ganja lay with the accused and that the prosecution’s measurement, though imperfect, was sufficient to trigger Section 37. He also warned against setting a precedent that could encourage dilution of evidence in NDPS cases.
The Court's Analysis
The Court undertook a detailed statutory interpretation of the NDPS Act, particularly the definition of ‘ganja’ under Section 2 and the punishment structure under Section 20. It observed that Section 20(a) criminalizes cultivation of any cannabis plant without reference to quantity, while Section 20(b) distinguishes penalties based on quantity for other offences like possession or sale. The Court held that the offence under Section 8(b) read with Section 20(a) is a standalone offence of cultivation, and the quantity-based thresholds in Section 20(b) do not apply to cultivation.
"For the purpose of determining the total weight of the recovered contraband 'Ganja' in the present case, 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 into consideration for weighing of contraband 'Ganja' as per the definition clause under NDPS Act."
The Court emphasized that the definition of ganja is not ambiguous and must be strictly applied. Including non-active plant parts would render the statutory definition meaningless and lead to arbitrary application of the law. The Court further noted that the prosecution had not provided any scientific analysis or laboratory report to substantiate the exclusion of extraneous matter. In the absence of such evidence, the Court inferred that the actual quantity of ganja was less than 20 kg.
Since the offence did not fall under Sections 19, 24, or 27A, and the quantity was not proven to be commercial, Section 37’s bail bar did not apply. The Court also referenced the principle that bail is the rule and jail the exception, particularly where the trial is likely to be protracted.
What This Means For Similar Cases
This judgment provides a critical precedent for bail applications in NDPS cultivation cases where the recovered material includes entire plants. Practitioners must now challenge the weight calculation at the earliest stage by demanding a proper segregation report from the investigating agency. If the prosecution fails to prove that only active plant parts were weighed, the accused may successfully argue that the commercial quantity threshold has not been crossed, thereby unlocking eligibility for bail under Section 37.
The ruling does not affect prosecutions for possession, sale, or transport of ganja, where Section 20(b) applies and quantity thresholds are central. It also does not override the requirement for scientific testing under Rule 11 of the NDPS Rules, which mandates proper identification and quantification. However, it establishes that courts will not accept inflated weights based on unseparated plant matter. Future bail applications must include a detailed analysis of the seizure protocol and reference to the statutory definition of ganja.
This judgment reinforces the principle that penal statutes must be interpreted strictly, especially when they carry severe consequences like denial of bail. It also underscores the importance of procedural compliance in narcotics cases.
