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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ranjan Sharma, J.
Avtar Singh - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr.MP(M) No. 653 of 2024
Decided On : 30-04-2024
Bail - Narcotic Drugs and Psychotropic Substances Act - Section 438 of Cr.P.C, Section 18 of NDPS Act - 438 Cr.P.C, 18 NDPS Act
Fact of the Case:
The bail petitioner sought pre-arrest bail under Section 438 of Cr.P.C originating from an FIR under Section 18 of the NDPS Act. The petitioner was accused of cultivating Opium on his land, which he denied, and provided undertakings to join the investigation and trial.
Finding of the Court:
The court analyzed the provisions of Section 438 of Cr.P.C and Section 18 of the NDPS Act, emphasizing the need for prima facie grounds for accusation and the nature of the crime. The court found that no prima facie case or reasonable grounds existed against the bail petitioner, and granted bail based on lack of evidence and the petitioner's cooperation with the investigation.
Issues: The issues revolved around the alleged cultivation of Opium by the bail petitioner, the nature of the accusation, and the parameters for granting bail under Section 438 of Cr.P.C and Section 18 of the NDPS Act.
Ratio Decidendi: The court emphasized the need for prima facie grounds for accusation and the nature of the crime, as well as the importance of considering various factors while granting bail, as established in relevant case laws.
Final Decision: The court allowed the petition and made the interim bail absolute, directing the petitioner to abide by the terms and conditions of the bail order.
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.
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
The main legal point established is that bail should be granted when no prima facie case or reasonable grounds exist pointing towards the accusation, and the nature of the crime is a crucial factor i....
The court established that the lack of a defined quantity for the cultivation of opium poppy under the NDPS Act allows for the possibility of bail, as the restrictions of Section 37 do not apply in s....
The absence of a defined quantity for the cultivation of opium poppy under the NDPS Act allows for the granting of bail, as the restrictions of Section 37 do not apply in such cases.
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