IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.830 of 2009 Date of decision: 01.10.2009 Kundan Lal …..Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr.Anup Chitkara, Advocate For the Respondent : Mr. J.S.Guleria, Assistant Advocate General. Kuldip Singh, Judge (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No. 281 of 2008 dated 8.5.2008 registered at Police Station, Bhunter, District Kullu, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘Act’). The status report has been filed. 2. Heard and perused the record. 3. It has been submitted on behalf of the petitioner that petitioner is a shepherd and he generally remains out with his flock of sheep and goats. The petitioner is step son of Lot Ram who has better relations with Mohan Lal and his real kiths and kins and has Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… inimical relations with petitioner. The petitioner has been falsely implicated in the case by Mohan Lal, Lot Ram and other interested persons. The petitioner is not connected with the commission of the offence. The land on which opium plants were allegedly found cultivated is not in possession of the petitioner. In the Girdawari and other revenue record the petitioner has not been shown in possession of the land in question. Only 20 plants were allegedly taken for sample and therefore, it cannot be said that the remaining plants out of 1500 plants were also opium plants. There is no evidence to connect the petitioner with the cultivation of the opium plants. The rigor of Section 37 of the Act is not applicable. The learned counsel appearing on behalf of the petitioner has submitted that the petitioner is ready to join the investigation and no recovery is to be made from the petitioner. 4. Mr. J.S.Guleria, learned Assistant Advocate General has opposed the bail application on the basis of status report. He has submitted that it has come during investigation that petitioner is in possession of the land on the basis of family partition and petitioner cultivated the opium plants on the land in question. The petitioner had absconded after the registration of the case and he was not available for interrogation, proceedings under Sections 82, 83 Cr.P.C. were initiated against the petitioner. Thereafter, the petitioner filed an application for anticipatory bail which was rejected by the Special Judge, Fast Track Court, Kullu on 25.8.2009. After dismissal of the application by the Fast Track Court, Kullu, the petitioner has filed the present application. The petitioner has joined …3… the investigation. On behalf of the State, it has been submitted that the petitioner is not entitled to bail under Section 438 Cr.P.C. 5. I have considered rival contentions of the learned counsel for the parties and have also gone through the police file. On behalf of the State, no specific revenue record has been shown so as to establish the possession of the petitioner on the land over which 1500 poppy plants were found by the investigating agency. The investigating agency is relying on the family partition in which the land in question was allegedly allotted to petitioner. As per jamabandi 2003-04 Phati Shillidhar Lotam Ram is owner in possession of land comprised in khasra Nos. 714 and 715. 6. The learned counsel for the petitioner has submitted that the case was registered on 8.5.2008. The petitioner is a shepherd and he generally remains with his flock of sheep and goats and it is quite possible that the investigating agency might have tried to contact the petitioner after 8.5.2008 but since petitioner is shepherd, therefore, investigating agency could not contact the petitioner. The petitioner having come to know registration of the case, he filed bail application before the Fast Track Court and thereafter in this Court. I am not purposely commenting on the material which has been collected by the investigating agency so that it may not prejudice the case of either side. It is not the case of the investigating agency that petitioner was actually found on the land and he was tending poppy plants when police reached the spot. It is also not the case of the investigating agency that petitioner is not co- …4… operating in the investigation or some recovery having bearing on the case is to be made from the petitioner. 7. In the facts and circumstances of the case, it is suffice to add that petitioner has made out a case for grant of bail under Section 438 Cr.P.C. Accordingly, the application is allowed. In the event of arrest of the petitioner in FIR No. 281 of 2008 dated 8.5.2008 registered at Police Station, Bhunter, District Kullu, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the petitioner be released on bail on his furnishing personal bond in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the Arresting Officer with the conditions that the petitioner shall continue to join the investigation as and when called by the Investigating Officer and shall not hamper the investigation and tamper with the prosecution evidence in any manner. Copy Dasti. October 1, 2009. ( Kuldip Singh ) (GR) Judge.