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2024 DIGILAW 303 (HP)

Avtar Singh v. State of Himachal Pradesh

2024-04-30

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Bail petitioner [Avtar Singh], has come up before this Court, seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure [hereinafter referred to as Cr.P.C] originating from the FIR No. 33 of 2024 dated 30.03.2024, registered at Police Station Gagret, District Una [H.P.], under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (referred to as the NDPS Act). FACTUAL MATRIX 2. Case set up by Mr. Lakshay Parihar, Learned Advocate, is that the Deputy Superintendent of Police [Probationer] alongwith other police personnel, were on patrolling-checking duty with respect to Illicit Liquor, Narcotics and Illicit Mining in their Government vehicle bearing registration No. HP72C-0819 towards village Kaloh, Tehsil Ghanari, District Una, Himachal Pradesh. While the police party was on patrolling/checking duty, as referred to above, secret information was received by the police at about 3:00 P.M on 30.03.2024 that the bail-petitioner had cultivated Opium [Afim-Dode] on his adjacent- adjoining land by fencing the same, leading to the registration of FIR No.33 of 2024, dated 30.03.2024 against the bail petitioner. 2(i) The case of the bail petitioner is that he has been falsely implicated. It is averred that the bail petitioner has neither resorted to alleged cultivation of 12 plants of Opium nor the land on which the plants have been found belongs to the bail-petitioner. It is further averred that the bail petitioner has no concern or connection with the alleged offences. 2(ii) The bail petitioner has given the requisite undertakings that he shall join the investigation and he shall not tamper with the evidence or the witnesses and shall not cause any inducement, threat or pressure to any person connected with the case. It is further averred that the bail petitioner has no criminal history and being a resident of the State there are no chances of his fleeing or absconding. The bail petitioner has undertaken that he shall also join the trial, if any and shall abide by all other conditions as may be imposed by this Court, in case, the petitioner is enlarged on bail. STAND OF STATE AUTHORITIES 3 Upon issuance of notice by this Court on 03.04.2024, this Court had directed the State Authorities to file the Status Report. However, in view of the averments in the bail petition, this Court granted interim bail on 03.04.2024. STAND OF STATE AUTHORITIES 3 Upon issuance of notice by this Court on 03.04.2024, this Court had directed the State Authorities to file the Status Report. However, in view of the averments in the bail petition, this Court granted interim bail on 03.04.2024. The matter was then listed on 09.04.2024, when, the State Authorities have filed the Status Report dated 09.04.2024, on the Instructions of Incharge Police Station Gagret, District Una, (HP). The copy of the Status Report was supplied to the learned counsel for the petitioner and therefore, the matter was adjourned for consideration on 19.04.2024. 3(i) As per the Status Report, the prosecution story is that on 30.03.2024, while the Deputy Superintendent of Police [Probationer] alongwith other police personnel were on patrolling-checking duty with respect to the Illicit Liquor, Narcotics and Illicit Mining in their government vehicle, bearing registration No. HP-72C -0819 near Kaloh, Tehsil Ghanari, District Una, (HP), a secret information was received by the police, at about 3:00 P.M, that the bail-petitioner had cultivated Opium [Afim-Dode] on the land adjacent-adjoining to his land by fencing the same. 3(ii) On the basis of this secret information, the police reached the spot at about 4:10 PM. On reaching the spot, the police inspected the area and though the bail-petitioner [Avtar Singh] was not present, and gone on tour, being a Driver, therefore, the police associated two independent witnesses, namely Ajay Pal and Smt. Bindu Bala, who were the Ward Members of the aforesaid area. In addition to this, the Patwari of the concerned area, was also associated at the time of spot inspection by the police. On spot inspection, 12 plants of Opium [Afim-Dode] were found to have been cultivated in Khasra No. 1917 which was owned by one Sh. Nathu as per revenue records. The Status Report reveals that the aforesaid trees were cut by the police and thereafter the recovered contraband was collected and after completing all other codal formalities, the Rukka was sent to concerned Police Station leading to the registration of FIR. 3(iii) During investigation, the statements of witnesses under Section 161 Cr.P.C was recorded. It is averred in the Status Report, that the Inventory was prepared before the Learned Judicial Magistrate Ist Class-II Amb, and thereafter the recovered contraband was sent to SFSL Junga for further analysis. 3(iii) During investigation, the statements of witnesses under Section 161 Cr.P.C was recorded. It is averred in the Status Report, that the Inventory was prepared before the Learned Judicial Magistrate Ist Class-II Amb, and thereafter the recovered contraband was sent to SFSL Junga for further analysis. The Status Report further reveals that the bail-petitioner [Avtar Singh] approached this Court in Cr.MP(M) No. 653 of 2024, and after grant of interim pre-arrest bail on 03.04.2024, the bail-petitioner made himself available before the Investigating Agency on 04.04.2024. The Status Report further reveals that on inquiry, the wife of the bail petitioner, Pooja Devi, informed the police that the plantation of Opium [Afim-Doda] has been done by her husband. Even the Ward Members namely Ajay Pal and Smt. Bindu Bala, who were associated by the police, as witnesses, for spot inspection/recovery have stated that the cultivation has been done on land possessed by the bail-petitioner. In the above background, the Learned State Counsel has prayed for cancellation of the bail of the bail-petitioner. 4. Heard Mr. Lakshay Parihar, Learned Counsel for the bail petitioner and Mr. Prashant Sen, Learned Deputy Advocate General for the Respondent-State. 5. Before dealing with the present application, it is necessary to take note of the provisions of Section 438 of the Cr.P.C. and Section 18 of the NDPS Act, under: - Section 438 Cr.P.C: Direction for grant of bail to person apprehending arrest: (1). Prashant Sen, Learned Deputy Advocate General for the Respondent-State. 5. Before dealing with the present application, it is necessary to take note of the provisions of Section 438 of the Cr.P.C. and Section 18 of the NDPS Act, under: - Section 438 Cr.P.C: Direction for grant of bail to person apprehending arrest: (1). Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person 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 the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1). (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376 AB or section 376DA or section 376DB of the Indian Penal Code. (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376 AB or section 376DA or section 376DB of the Indian Penal Code. Section 18 of the NDPS Act reads as under:- Punishment for contravention in relation to opium poppy and opium- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees; (c) in any other cases, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.] 6. Notably, the offence under NDPS Act including Section 18 of the aforesaid Act are cognizable and therefore, the claim of the suspect-accused for pre-arrest or post arrest bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon’ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565 , Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24 , mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation; and these parameters have been reiterated in Sushila Aggarwal versus State -NCT Delhi, (2020) 5 SCC 01. 6(i). While dealing with the case for grant of bail, the three judges bench of Hon’ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559 , in Para-25 that the nature of the crime has a huge relevancy, while considering claim for bail. 6(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon’ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account after reflecting judicial application of mind while considering the claim for bail as under: 11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including: (i) The nature of the accusation weighing in the gravity and severity of the offence; (ii) The severity of punishment; (iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not; (iv) Likelihood of accused to approach or try to approach the victims/witnesses; (v) Likelihood of accused absconding from proceedings; (vi) Possibility of accused tampering with evidence; (vii) Obstructing or attempting to obstruct the due course of justice; (viii) Possibility of repetition of offence if left out on bail; (ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge; (x) The different and distinct facts of each case and nature of substantive and corroborative evidence. 12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be. 7. Based on the above mandate of law, the general principle of law, is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above. 8. 8. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state. In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution. ANALYSIS OF CLAIM IN INSTANT CASE 9. After taking into account the entirety of the facts and circumstances, referred to above, this Court is of the considered view that the interim bail, granted by this Court on 03.04.2024, needs to be made absolute, for the following reasons:- 9(i) Perusal of the Status Report points out that no prima facie case or reasonable grounds exist pointing out towards the accusation against the bail-petitioner. 9(ii) The Status Report does not point out any prima facie case or any reasonable ground(s) to believe that the alleged cultivation of 12 plants Opium was done by the bail petitioner. Even during investigation, as of now, nothing has come on record that alleged cultivation was done by the bail petitioner. The prosecution story that the bail petitioner has resorted to cultivation of Opium [Afim-Doda] on lands adjacent-adjoining the land of bail-petitioner does not carry weight, at this stage, for the reason that Mr. Chander Shekhar, Patwari-Village Revenue Officer, has specifically stated that the aforesaid Khasra No. 1917, on which the aforesaid cultivation has been detected is owned and possessed by one Sh. Nathu but, the prosecution-State Authorities have neither questioned nor interrogated the aforesaid Sh. Nathu, as on day, and therefore, no inference can be drawn against the bail petitioner, at this stage. Chander Shekhar, Patwari-Village Revenue Officer, has specifically stated that the aforesaid Khasra No. 1917, on which the aforesaid cultivation has been detected is owned and possessed by one Sh. Nathu but, the prosecution-State Authorities have neither questioned nor interrogated the aforesaid Sh. Nathu, as on day, and therefore, no inference can be drawn against the bail petitioner, at this stage. The statement made by the wife of the bail petitioner cannot be the basis for drawing inference against the bail petitioner when, the statement made by the wife was contrary to the revenue records as stated by the patwari of concerned village, namely Chander Shekhar as referred to above and moreover, this statement was made out of fear of police at the relevant time. Even the statements made by two Ward Members cannot be accepted or face value being contrary to the revenue records and when, the veracity of their statements is yet to be tested during the trial. Merely, because the alleged cultivated land is adjacent to the land of the bail petitioner cannot ipso facto lead to the prima-facie accusation against the bail-petitioner. Thus, once neither any prima facie accusation exists nor reasonable grounds are borne out, pointing towards the accusation then, in absence of any material, this Court is inclined to extend the concession of bail, to the bail petitioner. 9(iii) Even in the Status Report, the State Authorities-Police has not pointed out any untoward incident indicating any blemished past criminal history or any apprehension that the bail petitioner is likely to flee away or is likely to tamper with the evidence or witnesses or any likelihood of fleeing away from the country. In absence of any such apprehension, by the State Authorities-Police, the bail petitioner is entitled to the continuance and confirmation of bail, in terms of the interim bail orders dated 03.04.2024, in view of the fact that the bail petitioner has given an undertaking in the bail petition in Para 8 to 16, as referred to above, that the petitioner shall join the investigation as and when required by the police and shall not tamper with the witnesses in any manner, coupled with the fact that the bail petitioner has no past criminal history. 9(iv) In addition to this, this Court relies upon a judgment passed by the Coordinate Bench, of this Court, in Cr.MP(M) No. 363 of 2024, titled as Mehar Deen versus State of Himachal Pradesh, decided on 04.03.2024, wherein the bail petitioner, who was allegedly involved in cultivating 120 trees of Opium alive; but had no criminal antecedents in the past has been enlarged on bail, by this Cour, as under:- 4. Briefly, the allegations against the petitioner are that on 24.2.2024, a police party on secret information had raided Khasra No.117, up-mohal Dawali and found 120 trees of opium alive. Perusal of the status report shows that the father of the petitioner is one of the co-sharers of the aforesaid khasra number. As per the statement of the mother of the petitioner, the aforesaid plants had been planted by the petitioner. 5. In this respect, learned counsel for the petitioner has drawn the attention of this Court to a judgment passed by a Coordinate Bench of this Court in Cr.MP(M) No.1904 of 2021 titled as Teku vs. State of Himachal Pradesh decided on 17.11.2024. Relevant para of the said judgment is being re-produced as under:- “9. 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. 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.” 6. From the aforesaid, it is evident that cultivation of opium can be classified as an offence equivalent to an offence involving intermediate quantity of Narcotic drug or psychotropic substance. 8. Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount, to the satisfaction of the trial Court, within two weeks from today………..” 10. In the facts of instant case, this Court is of the view that the allegation of illegal cultivation of 12 plants of Opium, falls with the ambit of “Intermediate Quantity” to which the rigors of Section 37 of NDPS Act are not applicable, coupled with the fact, that no material exists in the Status Report that the alleged 12 Opium plants were planted by the bail-petitioner and the revenue records prove that the land on which plantation existed (now destroyed by police) were owned and possessed by one Sh. Nathu and not by the bail-petitioner. Further, since the bail-petitioner has joined the investigation and the State Authorities have not spelt out any need for interrogation and the bail petitioner has no past criminal history, therefore, on facts and in view of the law in case Teku and Mehar Deen (supra) the prayer for enlargement on bail needs to be accepted. 11. Further, the Status Report does not indicate that on release on bail, there is any danger of the justice being thwarted/obstructed or any possibility of the offence being repeated by the bail-petitioner. 12. 11. Further, the Status Report does not indicate that on release on bail, there is any danger of the justice being thwarted/obstructed or any possibility of the offence being repeated by the bail-petitioner. 12. In view of the above discussion, the instant petition is allowed, and the prayer of the petitioner, [Avtar Singh], for enlargement on bail is accepted; and the order dated 03.04.2024 granting interim bail is made absolute, with the direction(s) to the petitioner to abide by the terms and conditions contained in the aforesaid order. 13. The observations contained in this judgment, shall not be construed, in any manner, as an indictive of findings, either for the purposes of investigation or the proceedings thereafter, including trial, if any against either of the parties. In aforesaid terms, the instant petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.