Hem Chand vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court invoking provisions of Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’) in case FIR No.32

of 2021, dated 15.05.2021, registered in Police Station Arki, District Solan, H.P., under Section 18(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’), for enlarging him on bail.

Status report stands filed, stating therein that during patrolling, on 15.05.2021, police party had received a reliable information at 10.15 a.m. that

petitioner-accused had cultivated opium poppy in the land owned by him near his cowshed in Village Bapdon, Tehsil Arki, District Solan, H.P.

Whereupon, a written information, under Section 42(2) of NDPS Act, was sent to Sub Divisional Police Officer, Darlaghat.

Thereafter, police party reached the spot and found that near cowshed of petitioner, in one field, there was large scale cultivation of opium. Kumari

Neha Garg, Patwari of the area and Madhu Bala, Pradhan of concerned Gram Panchayat were also called on the spot by making telephonic calls to

them. After perusing revenue record, Patwari had identified the land in question in the ownership, possession and cultivation of petitioner-Hem Chand.

Therefore, petitioner -Hem Chand was called on the spot, who, as per prosecution case, had admitted cultivation of opium poppy in his field, but he

could not produce any licence or permit for doing so. In the presence of witnesses, total 1190 plants of opium poppy were removed from the field and

were taken in to possession and seized by the police party by following the procedure.

On the basis of Rukka sent to the Police Station for registration, FIR under Section 18 of NDPS Act was registered.

It is also stated in the status report that on cursory glance by the Patwari, land whereupon opium poppy was found to be cultivated was identified in

the ownership and possession of petitioner-Hem Chand. In the aforesaid circumstances, petitioner was arrested at 7.45 p.m. on the same day.

It is further stated in the status report that during interrogation, petitioner had disclosed that he had cultivated opium plants for personal use as he

came to know that these plants were used as effective medicine to cure certain diseases and, therefore, as a hobby, he had cultivated opium plants as

he himself was addict of opium.

On weighing, total weight of all plants was found to be 15.925 kilograms, but weight of these plants is irrelevant as table appended to NDPS Act

does not prescribe any quantity of opium poppy plants for classifying it into small, commercial or intermediate quantity. Cultivation of opium is

prohibited under Section 8 of NDPS Act and punishment for cultivation of opium poppy has been provided, alongwith other offences, under Section 18

of NDPS Act. Sections 18(a) and 18(b) provide sentence for offence involving small quantity and commercial quantity respectively. But there is no

such quantity prescribed for opium plants found to be cultivated in contravention of NDPS Act. Such offence shall be punishable under Section 18(c)

of NDPS Act which provides punishment in any other case, i.e. other than the cases covered under Sections 18(a) and 18(b), but punishable under

Section 18 of the NDPS Act, and, therefore, cultivation of opium poppy is to be covered under Section 18(c) of the Act, to which punishment

extendable upto 10 years with fine extendable up to one lac rupees has been provided, but without any limit of minimum sentence which may be

imposed under this Section.

It is submitted on behalf of the petitioner that ownership and possession of petitioner has not been properly identified and verified and is yet to be

ascertained and proved, however, petitioner has been implicated in the case on the basis of opinion of Patwari given after cursory glance of the

record, but without any demarcation and, therefore, this vital fact which is crucial for determining the complicity of accused in commission of alleged

offence, has yet to be established on record by the prosecution and, therefore, on the basis of such unverified piece of evidence, liberty of petitioner

should not be curtailed. It is further submitted that petitioner is ready to abide by any condition imposed by the Court in case he is enlarged on bail.

Learned counsel for the petitioner has pointed out that in identical case, learned Special Judge, who has rejected bail application filed by the

petitioner, on 31.5.2021, had confirmed the anticipatory bail on the very same day i.e. 31.05.2021 of a person, accused for identical offence. The case

file of another case is not before this Court and slightest difference in the facts and circumstances, particularly in a criminal case may lead the Court

to arrive at a different conclusion despite the fact that on cursory glance, another case appears to be same. Therefore, this point raised on behalf of

the petitioner is of no help to him. However, taking into consideration provisions of Section 18(c) of the NDPS Act, principles and factors relevant to

be considered at the time of deciding bail application with reference to material placed before me, and submissions made on behalf of parties, I am of

the considered opinion that at this stage, petitioner may be enlarged on bail.

Accordingly, petition is allowed and petitioner is ordered to be released on bail in case FIR No.32 of 2021, dated 15.05.2021, registered in Police

Station Arki, District Solan, H.P., on his furnishing personal bond in the sum of  Rs.70,000/- with one surety in the like amount, to the satisfaction of

the trial Court/Special Judge, within four weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including

the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time of trial and also subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or

influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by

prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if

any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may

approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139

dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of

the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this judgment, downloaded from the web -page of the High Court of Himachal Pradesh, before the

authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High

Court.