Rajasthan High Court - Jodhpur
Heer Singh vs State on 11 June, 2021
Bench: Dinesh Mehta Judge)
(1 of 4) [CRLMB-4986/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 4986/2021
Heer Singh S/o Shri Jawan Singh, Aged About 65 Years,
Sodawaton Ki Bhagal, Tadawara Solankiya, Police Station
Charbhuja, District Rajsamand (Raj.). (At Present Lodged In
District Jail Rajsamand).
----Petitioner
Versus
State, Through P.P.
----Respondent
For Petitioner(s) : Mr. VR Choudhary, through Cisco
Webex
For Respondent(s) : Mr. Gaurav Singh, PP
JUSTICE DINESH MEHTA
(VACATION JUDGE)
Judgment
11/06/2021
1. This application for bail has been filed by the petitioner
under Section 439 of the Cr.P.C. in connection with FIR
No.86/2021 Police Station Charbhuja, District Rajsamand for the
offences under Section 8/18 of the NDPS Act.
2. Learned counsel for the petitioner submits that the quantity
of opium plants found cultivated/grown in the petitioner's field is
1175 units and this Hon'ble Court vide order dated 18.5.2021
passed in SB Cr. Misc. Bail Application No.5304/2021 granted
indulgence of bail to one Ranji after taking into consideration
various orders passed earlier. He therefore, prays that the
petitioner may also be released on bail. Reliance has also been
(2 of 4) [CRLMB-4986/2021]
placed upon judgment passed by Co-ordinate Bench of this Court
on 26.05.2017 in the case of Rama Vs. State of Rajasthan (S.B.
Criminal Misc. 2nd Bail No.4456/2017).
3. Mr. Singh, learned PP, however, opposed the petitioner's
prayer for release on bail.
4. This Court on 7.6.2021 passed the following order:
"(5) Learned counsel for the parties are not in a position to
bring to the notice of the Court any specific provision of law
or any judgment, which lay down with certitude the number
of plants, which should be taken to be of commercial
quantity.
(6) The notification No.1055(E) dated 19th October, 2001
issued by the Central Government in exercise of the powers
conferred by clauses (viia) and (xxiiia) of Section 2 of the Act
of 1985 does not specify the area of cultivation or number of
poppy plants. The reason for not doing so, as indicated in
the notification is that the offence is covered under clause (c)
of Section 18 of the Act of 1985.
(7) In the opinion of this Court since the very cultivation of
opium poppy without a license is prohibited under Section 18
of the Act of 1985, the view of the Central Government that
cultivation of opium poppy irrespective of quantity is covered
by Section 18(c) of the Act of 1985 does not appear to be a
correct position.
(8) In view of above referred stipulation in the notification,
each case of cultivation of poppy plant (1 plant or 1 lac
plants) is being considered under the provisions of Section
18(c) of the Act of 1985 and offenders are being released on
bail without ensuring compliance of the provisions contained
in Section 37(1)(b) of the Act of 1985.
(9) Let a notice be issued to Union of India, Ministry of
Finance, Department of Revenue. Notice be served upon Mr.
Mukesh Rajpurohit, learned Assistant Solicitor General.
Counsel for the petitioner is directed to supply a copy of the
bail application and a web copy of the order instant.
(10) List this case on 11.6.2021 alongwith the record of SB
Cr. Misc. Bail Application No.5304/2021.
5. Today, learned members of the Bar as well as Mr. Mukesh
Rajpurohit, learned ASG made their respective submissions.
(3 of 4) [CRLMB-4986/2021]
6. However, during the course of submissions, a question has
cropped up as to whether the Central Government is legally
justified in not prescribing small quantity and commercial quantity
(in terms of number of plants or in terms of area of cultivation) by
issuing the abovereferred notification dated 19.10.2001. Hence,
this Court deems it appropriate to exercise its inherent powers
under Section 482 of the Criminal Procedure Code so that
requirement of prescribing small and commercial quantity with
respect to cultivation of opium poppy be examined and if deemed
necessary/expedient, directions in this regard be issued to the
Central Government.
7. Having regard to the facts and circumstances of the case and
with a view to maintain parity, this Court is of the opinion that the
bail application filed by the petitioner deserves to be accepted.
8. Consequently, the bail application filed under Section 439
Cr.P.C. is allowed. The petitioner Heer Singh S/o Jawan Singh,
arrested in FIR No.86/2021 Police Station Charbhuja, District
Rajsamand shall be released on bail on his furnishing personal
bond in the sum of Rs.1,00,000/- and two sureties of Rs.50,000/-
each to the satisfaction of the trial Court.
9. Petitioner shall be required to appear before that Court on all
dates of hearing and as and when called upon to do so.
10. Needless to observe that the above observations made by
this Court are on the basis of material so far produced before the
Court. They are only prima-facie observation and the same shall
however, not come in the way of the trial Court to take
independent view of the matter, based on ocular and oral
evidence, while finally deciding the case.
(4 of 4) [CRLMB-4986/2021]
11. As observed in para no.6 of this order itself, Office is directed
to register a case separately as a Cr. Misc petition and list today
itself before this Court. The record of this bail application be also
tagged with cr. misc. petition.
(DINESH MEHTA), VJ.
1-CPGoyal/-
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