Section 37 NDPS Embargo Inapplicable If Entire Cannabis Plant Weighed Without Separating Flowering Tops: Rajasthan High Court Grants Bail

"In absence of separate measurement, it cannot be held that the recovery in the present case is more than the commercial quantity as for the plants, no such separate quantity of small or commercial has been given, as such, the embargo under Section 37 of NDPS Act would not be applicable in the present case." Rajasthan High Court has held that the stringent bail embargo under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) does not apply where investigating agencies weigh the cannabis plant in its entirety without segregating its fruiting and flowering tops.

A single-judge bench of Justice Baljinder Singh Sandhu granted regular bail to an accused, clarifying that total plant weight cannot be equated with commercial quantity under the statutory framework.

Acting on secret information, police officials raided the agricultural fields of the applicant and seized 352 green cannabis plants weighing an aggregate of 20 kilograms and 500 grams. The applicant was consequently arrested and booked under Section 8 read with Section 20 of the NDPS Act at Police Station Salumber. Aggrieved by his custody, the petitioner approached the High Court seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) / Section 439 of the Code of Criminal Procedure, 1973 (CrPC).

The primary legal issue before the Court was whether the recovery of cannabis plants weighed in total—inclusive of stems, roots, and leaves—attracts the statutory rigours of Section 37 of the NDPS Act. The Court was also called upon to determine whether the offence of cultivating cannabis plants under Section 20(a) prescribes categorisation based on small or commercial quantities.

Statutory Definition Of 'Ganja' Confined Solely To Flowering Or Fruiting Tops

The Court observed that under Section 2(iii)(b) of the NDPS Act, "ganja" is expressly defined as the flowering or fruiting tops of the cannabis plant, specifically excluding the seeds and leaves when not accompanied by the tops. It was noted that while Notification S.O. 1055(E) dated October 19, 2001, fixes the commercial threshold for ganja at 20 kilograms, measuring the whole plant along with extraneous components vitiates the calculation of commercial quantity.

Failure To Segregate Plant Parts Prevents Invocation Of Commercial Quantity Bar

Reiterating the settled position of law, the Bench highlighted that where no bifurcation of seeds, roots, and leaves from the flowering or fruiting tops is conducted prior to weighing, the actual weight of the contraband ganja cannot be presumed to cross the commercial threshold. Since the total seized weight was marginally above 20 kilograms, the Court noted that the weight of the actual ganja tops would fall safely below the commercial limit.

"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."

Cultivation Under Section 20(a) Does Not Specify Quantity-Based Classifications

Relying on coordinate bench rulings in Vinod Kumar v. State and Guman Singh v. State of Rajasthan, the Court analysed the distinction between Section 20(a) and Section 20(b) of the NDPS Act. It observed that contravention by cultivation of any cannabis plant falls under Section 20(a), which prescribes rigorous imprisonment up to ten years without differentiating between small, intermediate, or commercial quantities.

"For the contravention contained in clause (b), punishments have been particularised as per the quantities, namely small, intermediate and commercial quantities in subclause (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."

Section 37 NDPS Rigours Inapplicable To Present Case

The Court reaffirmed that Section 37 interdicts bail only for offences under Sections 19, 24, or 27A, or offences involving a commercial quantity of contraband. Given that the prosecution failed to demonstrate that the segregated fruiting tops exceeded the commercial threshold, the statutory impediment against granting bail stood excluded, drawing parity with the precedent in Kallu Nath v. State of Rajasthan.

Court Directs Enlargement Of Accused On Bail

Finding it to be a fit case for bail without commenting on the merits of the trial, the Court allowed the application. It directed the petitioner's release upon furnishing a personal bond of ₹1,00,000 alongside two sureties of ₹50,000 each to the satisfaction of the trial court.

The High Court allowed the bail application, concluding that the mechanical weighing of entire cannabis plants cannot be used by the prosecution to invoke the strict embargo under Section 37 of the NDPS Act. The ruling reinforces essential procedural safeguards requiring the strict segregation of contraband parts during seizure.

Date of Decision: 24 August 2026