Teku vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 438 Code of Criminal Procedure (in short 'Cr.P.C.'), seeking bail in case FIR No.45 of 2021, dated 4.5.2021, registered in Police Station Padhar at Darang, District Mandi, H.P., under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').

Status report stands filed. Record produced and perused.

It is stated in the Status Report that on 3.5.2021, when the police party, headed by Investigating Officer HC Om Prakash No.154 of Police Station Padhar, District Mandi, Himachal Pradesh, was present in the illaqua of Jhatingri, Tikkan, Barot, etc., in connection with detection of crime, at about 3.45 p.m., it met with another police party, headed by ASI Sher Singh, Incharge SIU Mandi, who were also going towards Marh illaqua in connection with detection of crime relating to cultivation of opium. Thereafter, a joint police party was formed by associating Patwari Suresh Kumar, Helper Mohan Singh and Jogender Pal (Pradhan of Gram Panchayat Latran) and another person namely Ganesh Kumar and when the police party reached Madhurwan, it found illegal cultivation of opium, and thereafter, ASI Sher Singh directed HC Tek Chand to check the 17 fields, which were on the upper side, and also directed HC Pradeep Kumar to check the eight fields which were on the lower side, and on checking these fields, 21500 plants of opium were found. These fields were bearing different Khasra Numbers. When the Patwari was asked to identify the ownership of the fields, he showed his inability to do so as there was dark and bad weather, due to which he was unable to read the revenue record. It is further in the report that a letter for permission to destroy the opium cultivation was sent on WHATSAPP to the SDPO Padhar, on which the SDPO directed to destroy the opium plants after retaining samples.

On the basis of Rukka sent to Police Station, FIR was registered.

During investigation, it transpired that fields were owned by large number of owners and on further inquiry, it was revealed by the recorded owners, who are relatives of each other, that the aforesaid fields, where opium was found to have been cultivated, have been cultivated by the petitioner.

Status report is silent about the fact that as to whether Teku-petitioner, at the time of raiding the Village, was on the spot or not or as to whether any efforts were made to apprehend and/or arrest him or not.

For establishing that fields, in reference in present petition, were in possession of the petitioner, statements of the co-owners, recorded under Section 161 of Cr.P.C., has been referred by learned Additional Advocate General.

It has also been submitted on behalf of petitioner that number of cultivated plants, claimed to have been found in fields, falls in the category of intermediate quantity and, therefore, rigors of Section 37 of NDPS Act are also not applicable and thus it has been advocated that considering this fact, petitioner is entitled for bail.

Punishment for offence committed in relation to opium poppy and opium is provided under Section 18 of the NDPS Act, which includes cultivation of opium also. For small quantity, punishment has been prescribed under Section 18(a) of NDPS Act, whereas, for commercial quantity punishment has been provided under Section 18(b) of NDPS Act, but cultivation of opium is not covered under Section 18(a) and 18(b). Section 18(c) covers any other case not covered under Section 18(a) and 18(b). In Notification dated 19.10.2001, specifying small and commercial quantity, the number of plants of opium has not been notified as commercial and small quantity and, but therefore, to say that there is no provision with respect to number of opium plants is not correct view. In Note-3 below the aforesaid Notification dated 19.10.2001, it has been categorically mentioned that 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 NDSP Act. Section 18(c) provides punishment equivalent to punishment provided for intermediate quantity under Section 21 of the Act and thus, cultivation of opium can be classified as an offence equivalent to an offence involving intermediate quantity of narcotic drug or psychotropic substance.

It has been stated in the Status Report that the petitioner has joined investigation and statements of the witnesses have also been recorded and as per status report, petitioner has been interrogated and investigation is complete.

Considering entire material on record, but without assessing it on merit, and taking note of principles and factors relevant to be considered at the time of deciding bail application with reference to aforesaid facts and circumstances placed before me, and submissions made by learned counsel for the petitioner as well as learned Additional Advocate General, I find that at this stage, petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail and interim bail granted on 29.9.2021 is confirmed, subject to furnishing personal bond in the sum of `50,000/- with one surety in the like amount, to the satisfaction of the trial Court, within two 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 the presence of petitioner/accused at the time of trial:

(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;

(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. Petitioner is permitted to produce a copy of this order, 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.