Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 799 (HP)

Kehar Singh v. State of H. P. -

2025-04-24

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition seeking pre-arrest bail. It has been asserted that police registered F.I.R. No. 59 of 2024, dated 07.04.2024, for the commission of an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) at Police Station Banjar, District Kullu, H.P. As per prosecution case the police party was on patrolling duty on 07.04.2024 and they found opium poppy plants growing in an apple orchard. The plants were counted and found to be 4760. The petitioner has nothing to do with the commission of the offence. The petitioner apprehends that he would be arrested. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, the petition. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 07.04.2024. They saw an orchard in which opium poppy plants were growing. The police called Dile Ram, who told the police that the field belonged to the petitioner. The police counted the plants and found them to be 4760. The police preserved alongwith their roots ten plants from different places and destroyed rest of the plants. The plants were sent to SFSL Junga, H.P., and the result reads that the exhibits were samples of opium poppy plants. The field, where the plants were growing, was demarcated on 20.3.2025, and it was found to be bearing Khasra No. 269. The co- owners stated that the petitioner is in possession of the field as per a family settlement. The petitioner had absconded. He is to be interrogated. Hence, the petition. 3. I have heard Mr. Kamal Kant, learned counsel for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State. 4. Mr. Kamal Kant, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. There is no evidence that the petitioner had cultivated the opium poppy plants. The petitioner would join the investigation as and when called upon to do so. He prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner had cultivated 4760 opium poppy plants, which is a huge quantity. The destination of the opium is yet to be traced. He prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner had cultivated 4760 opium poppy plants, which is a huge quantity. The destination of the opium is yet to be traced. The custodial interrogation of the petitioner is required for this purpose. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 8. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [ Directorate of Enforcement v. Ashok Kumar Jain , (1998) 2 SCC 105: 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail. xxxxxx 80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364] , it was held as under: (SCC p. 371, para 5) “5. … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment, upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.” 81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552] , the Supreme Court held as under: (SCC p. 449, paras 34-35) “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” (emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261 ], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720 : 1999 SCC (Cri) 1045] , while hearing an appeal by the Enforcement Directorate against the order [ Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom) ] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 9. This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 10. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181 : 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 11. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 12. It was submitted that police had destroyed 4750 opium poppy plants and had preserved only ten plants. Therefore, at best, only a case of cultivation of 10 plants is made out. Hence, the petitioner is entitled to bail. This submission is not acceptable. Section 18(c) of the NDPS Act makes the cultivation of opium poppy punishable with imprisonment which may extend to 10 years or a fine which may extend to one lakh. Therefore, at best, only a case of cultivation of 10 plants is made out. Hence, the petitioner is entitled to bail. This submission is not acceptable. Section 18(c) of the NDPS Act makes the cultivation of opium poppy punishable with imprisonment which may extend to 10 years or a fine which may extend to one lakh. It does not specify the number of plants. Therefore, even if the petitioner was found to be cultivating ten plants, his case would be covered under Section 18(c) of the NDPS Act. 13. The cultivation of opium poppy is a heinous offence because it produces opium, which is used to manufacture morphine and Diacetylmorphine (heroin). The narcotics are affecting society adversely, and the cultivation of the opium poppy plant cannot be viewed lightly because of its impact on society. 14. It was submitted that the land is jointly owned and there is nothing to connect the petitioner with the commission of a crime. This submission is not acceptable. The police recorded the statements of co-owners, who stated that the land was in the possession of the petitioner. Hence, prima facie, the petitioner is involved in the commission of an offence punishable under Section 18(c) of the NDPS Act. 15. It was held by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that the Courts should not grant bail in cases under the NDPS Act. It was observed: “9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” 16. Learned Additional Advocate General submitted that the destination of the opium is yet to be traced, and the custodial interrogation of the petitioner is required for this purpose. Keeping in view the fact that the petitioner was, prima facie, found to be cultivating opium poppy plants, his custodial interrogation is necessary to determine the purchaser of the same. 17. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. 17. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well- ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender” 18. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 19. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 20. Keeping in view the number of plants recovered and the material collected by the police, the petitioner is not entitled to the concession of pre-arrest bail. Hence, the present petition fails, and the same is dismissed. 21. The observations made here-in-before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.