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2020 DIGILAW 271 (HP)

Ram Singh v. State Of Himachal Pradesh

2020-05-05

ANOOP CHITKARA

body2020
JUDGMENT Anoop Chitkara, J. - Apprehending his imminent arrest on being arraigned as an accused in FIR number 0062/2020, registered under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station, Anni, District Kullu, HP, disclosing non-bailable offences, for allegedly cultivating 645 number of opium plants allegedly in his agricultural fields situated in Village Kanshan, Post Office Kamand, Tehsil Anni, District Kullu, Himachal Pradesh, the petitioner has come up under section 438 CrPC, seeking anticipatory bail. 2. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to have telephonic instructions in the matter from the concerned Police Station, and to procure status report immediately, either through WhatsApp/ e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number. 3. Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to Mr. Y.P.S Dhaulta, Advocate, learned Counsel for the petitioner on his WhatsApp number. 4. I have read the status report(s) and heard counsel for the parties through video conference. 5. The petitioner did not file any affidavit and power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the affidavit as well as the power of attorney. 6. The Petitioner has straightaway come to this Court and did not choose to approach the Special Court/Sessions Court. FACTS 7. The gist of the First Information Report and the status report is that the on 25.4.2020, when the police party was conducting investigation, they noticed opium having been planted in two fields. The further investigation revealed that these fields belong to Ram Singh, the petitioner herein. On reaching the fields, the police party took photographs, conducted measurement and recovered 645 plants of opium. The police took into possession ten plants of opium as sample and destroyed the remaining plants as per the orders of Sub Divisional Police Officer, who was also present on the spot. On reaching the fields, the police party took photographs, conducted measurement and recovered 645 plants of opium. The police took into possession ten plants of opium as sample and destroyed the remaining plants as per the orders of Sub Divisional Police Officer, who was also present on the spot. Subsequently, the Police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner. PREVIOUS CRIMINAL HISTORY 8. As per the learned counsel for the petitioner as well as the status report, the petitioner has no criminal history. SUBMISSIONS: 9. The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. He further contends that probably a citizen of Nepal has cultivated these plants and he had no knowledge or information about it. 10. Mr. Nand Lal Thakur, Learned Additional Advocate General for the State contends that offence is serious and in case this Court grants protection then such relief must be with stringent conditions. ANALYSIS AND REASONING: 11. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. 12. The following aspects are relevant to decide the present bail petition: (a) As per the FIR, the contraband involved is opium plants, which prima facie falls in the intermediate quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. b) Keeping in view the current Covid-19 pandemic, this Court is inclined to afford last opportunity to the Petitioner to mend his ways, making it very clear that in case, the petitioner repeats the offence, then this bail shall automatically stand cancelled and it shall also be a factor for future bail applications by the petitioner. (c) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. 13. Given the reasons above, in the event of arrest of the petitioner, he shall be released on bail, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the arresting officer. (a) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc. (b) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever. (c) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s). (d) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence. (e) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court, and shall furnish fresh bail bonds, if asked to do so. (f) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/ WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. (f) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/ WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him. (g) The petitioner shall attend the trial on each date, unless exempted. (h) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. (i) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence. (j) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity or if he commits any offence where the sentence prescribed is seven years or more, then the State may move appropriate application for its cancellation. (k) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 60 days from today. (l) The petitioner shall inform the SHO about the place of residence during trial. (k) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 60 days from today. (l) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court. (m) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail. 14. In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be. 15. The Investigating Officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular. 16. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions. 17. The Arresting Officer shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account(s). 18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation. 19. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner. 20. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 21. The petition stands allowed in the terms mentioned above. 22. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner. 20. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 21. The petition stands allowed in the terms mentioned above. 22. The Police Officer attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the bonds. 23. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.