Saudagar Ali vs State Of Punjab

1,Report No.:,"1223/2018/TOXI/FSL/PBD ated

17.05.2018

2,Reference No,"Unique Code No.109/18 DPO/PTL

dated 02.04.2018 from Senior

Supdt.of Police, Patiala.

3,"On opening the parcel sealed with one seal of MS, it was found to contain

another parcel bearing secret Code No.UID No.9/2018, sealed with one

seal of DS. On opening the parcel having secret code No.UID No.9/2018.

It was found to contain the following",

3,Subject:-,"FIR No.24 dated 28.03.2018 u/s

18/15/61/85 ND & PS Act, PS

Bakhshiwala

4,Date of Receipt:-,03/04/18

5,Mode of Receipt:-,"Through Const.Varinder Singh,

No.1234/PTL

6,Articles Received:-,"One parcel sealed with one seal of

NG alleged to contain poppy plant

seal on the parcel was found intact

and tallied with the specimen seal

impression.

7,Quantity of sample:-,"500 Grams of dried greenish brown

coloured plan material having dried

twigs, leaves and pods.

8,Purpose of Reference:-,Analysis and report

9,"Identification & Test:- Meconic

Acid","Found present in the content of the

parcel

,"Morphine and other Alkaloids of

opium:-",-do

Report The content of the parcel under reference has been analysed by chemical analysis. On the basis of

analysis, poppy plant has been found present in the content of the parcel. Sd/- Assistant Director (Toxicology)

FSL SAS Nagar.",,

(a) the coagulated juice of the opium poppy; and,,

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not",,

more than 0.2 per cent of morphineâ€​,,

Therefore, the charge in respect to illegal possession of opium is clearly unsustainable.",,

Learned counsel for the State is unable to deny the stand of the State as reflected in the affidavit dated 12.11.2013 of Ms. V.Neeraja IPS, Director",,

General, Vigilance Bureau. There is no explanation as to why and on what basis the amended charge has been framed. Once the State itself has",,

taken a stand that 100 grams of smack alongwith 5 Kg. opuim has been recovered from co-accused Randhir Singh, who is not petitioner before this",,

Court, there is no plausible reason forthcoming to justify this volte-face. It appears to be a clumsy attempt on the part of the prosecution to circumvent",,

decision dated 16.12.2013 by the Hon'ble Supreme Court.,,

Keeping in view the facts and circumstances of the case, impugned charge-sheet dated 03.06.2014 is quashed qua the petitioners.",,

Crl. Revision No.373 of 2015 is consequently allowed.,,

Crl. Revision No.305 of 2014 and Crl. Revision No.419 of 2014 have been rendered infructuous as the earlier charge-sheet dated 11.11.2013 merged,,

with the subsequent amended charge-sheet dated 03.06.2014. They are disposed of accordingly.â€​,,

Learned counsel for the petitioner has also relied upon a Division Bench judgment of Himachal Pradesh High Court, 2011(9) RCR (Criminal) 92,",,

“State of H.P. Versus Sucha Singh and anotherâ€​ wherein it has been held as under:,,

“The above position apart, we also find that the prosecution has failed to prove that the recovered stuff fall within the definition of “Poppy",,

Strawâ€​.,,

“Section 2(xviii), defines “poppy straw†which means all parts (except the seeds) of the opium poppy after harvesting whether in their",,

original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.",,

Section 2(xvii), “opium poppyâ€​ means",,

(a) the plant of the species Papaver somniferum L.; and,,

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government,,

may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.",,

From the definition of “Poppy Strawâ€​ reproduced hereinabove, it is clear that to understand the meaning of “Poppy Strawâ€​, it is essential to",,

refer to the meaning of “Opium Poppyâ€. The “Poppy Straw†when read alongwith the definition of opium poppy means (a) all parts (except,,

seeds) of the plant of the species of papaver somniferum-L and all parts (except seeds) of the plant of any other specie s of papaver from which,,

opium or any other phenanthrene alkaloid can be extracted and which the Central Government may by notification in the official Gazetted declare to,,

be opium poppy for the purposes of this Act.,,

“Further the Apex Court in Ajaib Singh v. State of Punjab [ 2000 Cri.L.J. (SC) 2270 ], held that even though the term “Poppy Husk†has",,

not been defined in the Act, but the term “Poppy Straw†has been defined. The term “Poppy Straw†includes all parts (except the seeds) of",,

“Opium Poppyâ€. “Opium Poppy†means the plant of the species papaver. Thus, except for the seed all other parts of the plant of the species",,

Papaver would fall within the term Poppy Strawâ€​.,,

“In the present case, it is clear from the report of analysis referred to above that three tests were conducted by the Chemical Examiner to",,

ascertain whether the stuff contained meconic acid and morphine and also by physical appearance, do not indicate that the stuff examined consisted of",,

the parts of either the plaint of the species of papaver somniferum -L or a plant of any other species of papaver from which opium or any other,,

phenanthrene alkaloid can be extracted and which the Central Government may have notified to be the opium poppy for the purposes of the Act.,,

Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls within the definition",,

of “Poppy Strawâ€​.,,

It is, thus, argued that the case of petitioner would fall under Section 15 of NDPS Act, as recovery is of poppy straw.",,

In reply, learned State counsel has submitted that the recovery is of 6 kgs. of green poppy plants, therefore, as per the FSL report, once it has been",,

found that the sample contained meconic acid, the trial court has rightly framed the charge under Section 18 of the NDPS Act.",,

After hearing learned counsel for the parties, I find merit in the present petition.",,

A perusal of the FSL report shows that it is silent about the percentage of the morphine content/meconic acid, and, therefore, it cannot be held that",,

percentage of morphine is above 0.2 % and therefore, being opium as per Section (xv) (b) or opium poppy as per Section (xvii) or being opium",,

derivative as per Section (xvi)(e), having contents less than 0.2 per cent of morphine, the charge under Section 18 of the NDPS Act is not sustainable.",,

In view of the judgment of the Hon'ble Supreme Court in Ajaib Singh's case (supra) and of this Court in Vinay Kumar's case (supra), the recovery is",,

of the green poppy straw from the petitioner and it would be an offence under Section 15 of the NDPS Act.,,

Therefore, the present petition is allowed. The impugned order dated 09.07.2018 is set aside. The trial Court is directed to frame the charge under",,

Section 15 of the NDPS Act.,,

The petition stands disposed of.,,