The court applied the provisions of Section 18(c) of the NDPS Act and considered the lack of prescribed quantity for opium poppy plants in granting bail to the petitioner.

JUDGMENT

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.

2. 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.

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

4. 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.

5. 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.

6. 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.

7. 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 accus