BALLEY SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS and the two companion petitions under Article 226 of the Constitution challenge the constitutional vires of the Opium Act (Act XIII of 1857) whereunder the respondents have completely banned the cultivation of poppy in pargana Jaunsar Bawar in the district of Dehradun.

(2.) THE petitioners state that they are the residents of pargana Jaunsar Bawar. Tehsil Chakrata district Dehra Dun and carry oh the occupation of agricultural cultivation in small hilly fields. From times immemorial the petitioners and their ancestors have been cultivating poppy for purposes of using its seed as staple food. It is alleged that poppy is used for preparing Chapati. Dal and even Chatni. Before 1950 there was absolutely no restriction upon the cultivation of poppy for purposes of extraction of opium or for seeds. With the enactment to the Opium and Revenue Laws (Extension of Application) Act, 1960, the Opium Act, 1857 was extended to the Pargana of Jaunsar Bawar. Section 8 of the Opium Act provides for the issue of licences to cultivators who may choose to engage in cultivating poppy. The petitioners allege that even after the Opium Act became applicable, the inhabitants of the Pargana Jaunsar Bawar continued to cultivate poppy without any let or hindrance and without the issue of any licence. In 1958 the Union Government attempted to stop the cultivation of poppy, but as a result of representations made by the residents of pargana Jaunsar Bawar the Government did not enforce the provisions of the Opium Act in the pargana of Jaunsar Bawar. The residents continued to cultivate poppy without taking licences, yet no penal action was taken by the authorities It is averred that in fact the authorities have not issued any licence to any person since 1958. In October 1963 the petitioners sowed poppy seeds as usual. In the month of March when the show melts the poppy seeds start sprouting and the poppy plants start growing gradually. In or about the month of March, 1964 a large number of excise staff appeared in the pargana of Jaunsar Bawar. They threatened to destroy the poppy plants that had started growing by immediate uprooting of the standing crop. They also threatened the petitioners with prosecution. It is stated that in his locality poppy is the crop which can conveniently be grown and no other crop grows there easily. The petitioners' grievance is that the authorities acted arbitrarily in completely banning the cultivation of poppy and that the provisions of the Opium Act violate the fundamental right guaranteed to the petitioners by Articles 14 and 19 of the Constitution. The petitioners pray that the respondents be directed not to interfere with their right of cultivation of poppy and also be directed to issue licences to the petitioners under the provisions of the Opium Act.

(3.) PRIOR to the enforcement of the Constitution of India Jaunsar Bawar pargana was a scheduled area to which the provisions of the Opium Act, 1857 and Dangerous Drugs Act, 1930 were not applicable. With the promulgation of the Opium and Revenue Laws (Extension of Application) Act, 1950, the provisions of the Dangerous Drugs Acts and the Opium Act became applicable to this Pargana with effect from 18th April, 1950. Originally this Pargana was not included as an area within which licences for cultivation of poppy might be granted, but on account of the representations made by the residents of this Pargana and the recommendations of the State of Uttar Pradesh, the Union Government by its notification No. 2- -Dangerous Drugs dated 3rd July, 1954 included this Pargana and authorised the State Government to grant licences for the cultivation of poppy for the production of poppy-heads only under the Central Opium Rules, 1934. This was done with a view to gradually prohibit the cultivation of poppy in this pargana as recommended by the State of Uttar Pradesh after four years i.e. from 30th September, 1957. The State Government gave extensive publicity to the decision of the Government that poppy cultivation would not be allowed after 30th September, 1967. Posters and leaflets were distributed and individual cultivators were contacted. On an enquiry conducted on the spot by an officer of the Narcotics Department in the month of April, 1958, it was found that illegal poppy cultivation has been done in Jaunsar Bawar area in the year 1957-58 in 302 acres by 1189 cultivators of 82 villages. At this stage the Government of Uttar Pradesh again made representations and requested the Union Government to postpone its decision to impose the total ban on the cultivation of poppy for another four years. Theoretically cultivation had been permitted for the production of seeds only, but it was found that actually opium was being illegally extracted and disposed of to the illicit traders. Taking the reality into consideration the Government felt that it would not be proper to affect legal sanction to the extraction of opium when the State Government was unable to prevent it. The Government decided to allow extraction of opium for a limited period of four years on condition that it would be reduced progressively by about 25 per cent every year so that by 30th September, 1962 it was completely eliminated. By another condition the cultivators were expected to deliver 3 seers of opium per highs during 1958-59 season for being eligible for licensing during 1959-60, bill the cultivators tendered only 0.80 seer per bigha as against the then All India average yield of 6.87 seers per bigha of opium. This fact showed that the cultivators did not tender full quantity of opium produced by them and instead kept " larger part of it for sale in the illicit market. The allegation that no licences for cultivation were issued was denied. It was stated that licences were Issued, but for progressively reduced areas. In 1958-59 licences were issued for 113 hectares (1 hectare is equal to 2.471 acres) in 1959-60 for 40 hectares, in 1960-61 for 34 hectares and in 1961-62 for 17 hectares.