Ramesh @ Pappu vs State Of Haryana
2021 Latest Caselaw 2876 P&H

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CRM-M-26558-2021


   IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

(208)
                                                             CRM-M-26558-2021.
                                                     Date of Decision:-05.10.2021.
Ramesh @ Pappu
                                                                     ......Petitioner

                                        Versus

State of Haryana
                                                                   ......Respondent

CORAM:        HON'BLE MR. JUSTICE VIKAS BAHL

                     ****

Present:      Mr. Keshav Pratap Singh, Advocate for the petitioner.

              Mr. Praveen Bhadu, AAG, Haryana.

                     ****

VIKAS BAHL, J. (Oral)

This is a first petition under Section 439 Cr.P.C. for grant of regular

bail to the petitioner in case FIR No.78 dated 11.03.2020, under Sections 18 (c)

of the NDPS Act, 1985, registered at Police Station, Chandhut, District Palwal.

The case of the prosecution, in brief, is that a secret information

was received by the police officials to the effect that the petitioner along with two

other persons, namely, Braham and Subhash have constructed their house at

Jamna Ghat Road and in the vacant space behind their house, they have cultivated

fodder (Barsim) and opium illegally and that the said poppy is grown in the

plants which can be seen at the spot. Then, on the basis of the said information,

the present FIR was registered. It is further the prosecution's case which is

apparent from the statement of Rohtash, Tehsildar recorded under Section 161

Cr.P.C. (Anexure P-2) that the recovery of 58.900 kg had been made from the

petitioner. The alleged recovery had been made from the place which was stated

to be behind the house of the petitioner.

Learned counsel for the petitioner has submitted that in the present

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case, even as per the prosecution version, the alleged recovery of 58.900 kg of

poppy plants is from khasra No.225//12 and as per the jamabandi of the said

khasra number, which has been annexed as Anexure P-1 along with the petition,

it is apparent that the same is in the possession of a number of persons, who were

all shown as co-sharers in the land along-with the present petitioner. A further

reference has been made to page 30 of the paper book, wherein, the vernacular of

the site-plan prepared by the prosecution has been attached. From the said site-

plan, it has been highlighted that the alleged area from where the said poppy

plants have been recovered is shown to be at the back of the house of the

petitioner and the said field is beyond the constructed area of the same. Further

reliance has been placed upon paragraph 8 of the reply dated 24.07.2021, which

has been filed by way of an affidavit of the Deputy Superintendent of Police,

Palwal. Para 8 of the said reply is reproduced hereinbelow:-

"8. That the contents of para no.8 of the petition are

admitted to the extent of the petitioner not having been arrested from

the spot and he is a co-owner of the land being SHAMLAT DEH.

However, the rest of the contents are wrong and denied."

It has been argued that on the basis of the above that even as per the

prosecution case, the petitioner, at best is a co-owner of the land and the land is in

fact stated to be Shamlat Deh and also that the petitioner was not arrested on the

spot. It has also been argued that there is nothing on record to show that the

petitioner is the one who had sown or cultivated the poppy plants in question.

For the said purpose, learned counsel for the petitioner has relied upon a

judgment of the Himachal Pradesh High Court reported as 2019 (4) ILR HP 347,

titled as "Sobhram Vs. State of Himachal Pradesh" and also upon a judgment of

the Hon'ble Apex Court reported as 2004 (1) RCR (Criminal) 736, titled as

"Alakh Ram Vs. State of U.P.", to contend that in case, the petitioner is a co-

owner, then he cannot be denied bail for alleged recovery of poppy plant from the

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said land. Learned counsel for the petitioner has also submitted that in the

present case, the quantity, beyond which the quantity becomes commercial is, 50

kgs. and the recovery in the present case that has been made is marginally higher

than the said commercial quantity and the same includes water, fruit, stem and

flower of the plant and this would be a matter of debate as to what would be the

actual recovery of poppy straw. Learned counsel for the petitioner has submitted

that the petitioner was arrested on 02.03.2021 and the challan in the present case

has been filed and there are 14 prosecution witnesses out of which none have

been examined and the charges have not been framed yet and, thus, the trial is

likely to take time and the petitioner is not involved in any other case.

Learned counsel for the petitioner, in order to overcome the bar

under Section 37 of the NDPS Act, has relied upon several judgments. The said

judgments have been collated hereinbelow:

 Judgment of the Hon'ble Supreme Court in Criminal Appeal No.965 of

2021 titled as Dheeren Kumar Jaina v. Union of India.

 Judgment of a Co-ordinate Bench titled as Ankush Kumar @ Sonu v.

State of Punjab reported as 2018 (4) RCR (Criminal) 84; which was

further challenged in the Hon'ble Supreme Court vide SLP (Criminal)

Diary No.42609 of 2018 and the same was upheld.

 Judgment of a Co-ordinate Bench in CRM-M-20177-2020 titled as

Narcotic Control Bureau v. VipanSood and another and the same was

upheld by the Hon'ble Supreme Court vide order dated 24.08.2021 in a

Petition for Special Leave to Appeal (Crl.) No.5852/2021.

 Judgment of the Hon'ble Supreme Court in Criminal Appeal No.668 of

2020 titled as "Amit Singh @ Moni v. Himachal Pradesh.

 Judgment of the Hon'ble Supreme Court in Criminal AppealNo.827 of

2021 titled as Mukarram Hussain v. State of Rajasthan and another.

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 Judgment of a Co-ordinate Bench of this Court in CRM-M 10343 of 2021

titled as "Ajay Kumar @ Nannu v. State of Punjab".

Further, reliance has also been placed upon the judgment of a Division

Bench of this Court in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled as,

Harpal Singh v. National Investigating Agency and another, dated 31.08.2021,

wherein the Division Bench was pleased to grant suspension of sentence in a case

where the recovery was of commercial quantity. It has been argued that in the

said Division Bench judgment, it had been noticed that the grounds for regular

bail stand on better footing than for suspension of sentence, which is after

conviction.

Learned State counsel, on the other hand, has submitted that the

recovered poppy plant is not a wild growth and, thus, it has to be presumed that

the same must have been sown and cultivated. It is further submitted that as per

the photographs (Annexure R-5), the said poppy plant to the extent of 58.900 kgs.

was in the backyard of the house of the petitioner. It has also been stated that the

Sarpanch as well as the Panch of the village have also given statements dated

17.09.2021 (Anexure R-11 and R-12) to the effect that they had come to know

that Ramesh and Subhash had illegally grown poppy plants on the vacant space in

their fields. Braham son of Jugal, also has his house in his fields and he has also

encroached upon a part of Panchayat land and the plots to SC/BCs have been

carved out of Panchayat land adjoining his land and has further stated that he has

never seen poppy plants earlier and he did not even have knowledge about them,

when police raided poppy plants crop, it was at that point in time when he came

to know of it. Thus, the learned State counsel has opposed the present bail

application.

Learned counsel for the petitioner in rebuttal to the same has submitted

that the said statements of the Sarpanch and the Panch dated 17.09.2021 have

been recorded after the challan has been presented, only to fill up the lacuna and

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even the said statements would show that the alleged poppy plants were in the

vacant fields.

This Court has heard the learned counsel for the parties and has

perused the paper book.

A perusal of the record would show that as per the jamabandi

(Anexure P-1) which is with respect to khasra No.225//12, the petitioner along

with a large number of other persons is shown to be co-owner of the land. The

said fact has also been admitted in the reply filed by way of affidavit filed dated

24.07.2021 by the Deputy Superintendent of Police, Palwal. Paragraph 8 of the

said reply has already been reproduced hereinabove. Even the fact that the

petitioner was not arrested on the spot is also not disputed. Perusal of the site-

plan (Anexure P-3) of the paper book as well as the photographs would show that

the said plants have been grown at a place which is beyond the constructed area

of the petitioner's house.

The High Court of Himachal Pradesh in Sobhram's case (supra)

had specifically considered the case for grant of bail where the police had

recovered 2000 plants of opium, which were alleged to be illegally cultivated by

the petitioner therein, in his fields. The fact that the said land was a joint land of

several persons, was considered as a very substantial point in favour of the

petitioner therein and bail was granted relying on the said aspect, after

considering the provisions of Section 37 of the NDPS Act. Paragraph 3 and 4 of

the said judgment are reproduced hereinbelow.

"3. Close scrutiny of the record/status report reveals that FIR

No. 51, dated 1.5.2018 under S.18 of the Narcotic Drugs &

Psychotropic Substances Act, came to be lodged against the bail

petitioner at Police Station Padhar, Mandi, on the basis of a secret

information received by the Police to the effect that the bail

petitioner is involved in illegal cultivation of prohibited substance

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i.e. Opium. Allegedly, the Police recovered 2000 plants of Opium

illegally cultivated by the bail petitioner in his fields. As per record,

Police, after having drawn samples, destroyed the illegal cultivation

of Poppy plants, however, report of the FSL clearly suggests that the

plants allegedly confiscated by the investigating agency are samples

of Poppy plants and fall within the definition of prohibited substance

as defined under the Act ibid.

4. Considering the fact that the land, whereupon cultivation of

Opium and Poppy plants was being allegedly done, is a joint land

and in possession of many persons coupled with the fact that guilt, if

any, of the bail petitioner is yet to be proved in accordance with law

by the prosecution by leading cogent and convincing evidence, this

court finds no reason to keep the bail petitioner behind the bars

during trial. Moreover, rigours of S.37 of the Act ibid are not

applicable in the facts and circumstances of the present case, as

such, prayer for grant of bail, especially in the offence allegedly

committed under S.18 of the Act ibid, deserves to be accepted at this

stage."

The Hon'ble Apex Court in Alakh Ram's case (supra) had also

observed that it has to be proved that merely the petitioner had cultivated the

prohibited plant and it is not enough that plants were found in the property of the

accused. The fact that the appellant therein and his father and brothers owned 70

bighas of land was also taken into consideration and the fact that there was

nothing to show that the said land was owned exclusively by the appellant therein

was also considered and in view of the same, the appellant therein was acquitted.

The said judgment has been followed by the Madhya Pradesh High Court in

Ramesh Vs. The State of Madhaya Pradesh, reported as 2011 (25) R.C.R.

(Criminal) 464. The above-said point, thus, is a very debatable issue and would

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be considered during the course of trial, to the effect as to whether the petitioner

can be held liable for recovery of poppy plants from land, which is jointly owned

by several persons. Admittedly, in the present case, the petitioner has been in

custody since 02.03.2021 and the challan in the present case has already been

presented and there are 14 witnesses, out of which none have been examined and

since the charges have not been framed even now, thus, the trial is likely to take

long time, moreso, in view of the present COVID-19 pandemic. The petitioner is

also not involved in any other case and the said fact weighs in favour of the

petitioner. The statements of the Sarpanch and the Panch had been recorded after

the presentation of the challan and even as per the said statements, it has been

stated that the poppy plants were grown in the vacant space in the fields, which as

per the jamabandi is stated to be a joint land.

Learned counsel for the petitioner has also highlighted the fact that

in various cases where recovery of commercial quantity was involved, there the

Hon'ble Supreme Court as well as this Court have, on the basis of arguable points

in the bail application as well as by considering the period of custody and the

merits of the case, granted bail/suspension of sentence. Some of the said

judgments are being discussed hereinafter. In Criminal Appeal No.965 of 2021

titled as Dheeren Kumar Jaina v. Union of India, the Hon'ble Supreme Court in

a case where allegation in the chargesheet was with respect to 120 kg of

contraband i.e. "ganja", thus, being of commercial quantity, was pleased to grant

bail after setting aside the order of the High Court where the said application for

grant of regular bail had been rejected.

A co-ordinate Bench of this Court in a detailed judgment titled as

Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR (Criminal)

84, had considered the provision of Section 37 of the NDPS Act in extenso and

had granted bail in a case which involved commercial quantity. The relevant

portion of the said judgment is reproduced as under:

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" xxx--xxx--xxx

But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit 'any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit 'any offence' or 'offence under NDPS Act' after being released on bail, then this court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, this satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner."

The Special Leave Petition (Criminal) Diary No.42609 of 2018

filed against the aforesaid judgment of the Co-ordinate Bench of this Court, was

dismissed by the Hon'ble Supreme Court.

Further, vide order dated 25.02.2021 in CRM-M-20177-2020, a Co-

ordinate Bench of this Court granted regular bail to an accused who was involved

in a case wherein recovery was of 3.8 kgs of "charas" (commercial quantity) after

being in custody for 1 year and 7 months. The said order was upheld by the

Hon'ble Supreme Court vide order dated 24.08.2021 in a Petition for Special

Leave to Appeal (Crl.) No.5852/2021 titled as "Narcotic Control Bureau v.

Vipan Sood and another".

The Hon'ble Supreme Court of India vide order dated 12.10.2020

passed in Criminal Appeal No.668 of 2020 titled as "Amit Singh @ Moni v.

Himachal Pradesh" was pleased to grant regular bail in a case involving 3 kg

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and 800 grams of "charas" primarily on the ground of substantial custody and

also, the fact that the trial would likely take time to conclude.

In Criminal Appeal No.827 of 2021 titled as Mukarram Hussain v.

State of Rajasthan and another, the Hon'ble Apex Court vide judgment dated

16.8.2021 was also pleased to grant bail wherein the quantity of the contraband

was commercial in nature.

A Co-ordinate Bench of this Court in CRM-M 10343 of 2021 titled

as Ajay Kumar @ Nannu v. State of Punjab and other connected matters, vide

Order dated 31.03.2021, after taking into consideration the stipulations of Section

37 of the NDPS Act, was pleased to grant regular bail in a case involving

commercial quantity and a condition was imposed on the petitioner therein while

granting the said bail and the said condition was incorporated in para 21 of the

said judgment, which reads as under:

"21. However, the petitioners are granted regular bail subject to the condition that they shall not commit any offence under the NDPS Act after their release on bail and in case of commission of any such offence by them after their release on bail, their bail in the present case shall also be liable to be cancelled on application to be filed by the prosecution in this regard."

Further, a Division Bench of this Court vide judgment dated

31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled as,

Harpal Singh v. National Investigating Agency and another, granted suspension

of sentence in a case where the recovery was of commercial quantity. In the

abovementioned order, the Division Bench had taken into consideration the right

vested with an accused person/convict under Article 21 of the Constitution of

India with regard to speedy trial. Further, the judgment of Hon'ble the Supreme

Court in State (NCT of Delhi) v. Lokesh Chadha; (2021) 5 SCC 724 was also

taken into account and the provisions of Section 37 of NDPS Act were

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considered and the sentence of the applicant-appellant therein was suspended

after primarily considering the period of custody of the applicant-appellant

therein and also the fact that the appeal was not likely to be heard in near future.

Reference in the order was also made to the Division Bench judgment of this

Court in Daler Singhv. State of Punjab; 2007 (1) R.C.R. (Criminal) 316 and the

view taken in Daler Singh's case (supra) was reiterated and followed. In the

above said judgment, it was also noticed that the grounds for regular bail stand on

a better footing than that of suspension of sentence which is after conviction. It is

apparent that to meet the requirement of Section 37 of the NDPS Act, various

Courts have taken into consideration the merits of the case and the period of

custody and where in a case there are arguable points on merits and the custody is

also adequate, the Hon'ble Supreme as well as various High Courts have granted

bail even in cases involving commercial quantity. This Court feels that in the

present case, there are several arguable points which have been raised by the

learned counsel for the petitioner and the petitioner has been in custody for 01

year 06 months and 07 days and the same is sufficient to entitle the petitioner for

grant of regular bail. Moreover, this Court proposes to impose such conditions

that would meet the object of Section 37 of the NDPS Act.

Accordingly, the present petition is allowed and the petitioner is

directed to be released on regular bail on his furnishing bail/surety bonds to the

satisfaction of the trial Court / Duty Magistrate, subject to his not being required

in any other case. The petitioner shall also abide by the following conditions:-

1. The petitioner will not tamper with the evidence during the trial.

2. The petitioner will not pressurize / intimidate the prosecution witness(s).

3. The petitioner will appear before the trial Court on the date fixed, unless

personal presence is exempted.

4. The petitioner shall not commit an offence similar to the offence of

which he is accused, or for commission of which he is suspected.

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5. The petitioner 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 or tamper with the evidence.

In case of breach of any of the above conditions, the prosecution

shall be at liberty to move an application for cancellation of bail before this

Court.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial Court would proceed

independently of the observations made in the present case which are only for the

purpose of adjudicating the present bail application.

(VIKAS BAHL) JUDGE October 05, 2021.

sandeep
Whether speaking/reasoned:-                                             Yes/No
Whether Reportable:-                                                    Yes/No




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