State of H.P. vs Gurmail Singh Alias Baba

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 6.10.2004, passed by the learned Sessions Judge, Una in Sessions Case No. 1 of 2004, whereby he acquitted the accused of having committed an offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ''Act''). The prosecution story, in brief, is that PW-5 HHC Sher Bahadur while on patrolling duty at village Kante, received secret information that accused Gurmail Singh was selling poppy husk at his house and in case a raid is conducted in the house huge quantity of poppy husk may be recovered. Thereafter, he reported the matter to PW-12 ASI Harbans Lal Rana who was also on patrolling duty alongwith PW-10 H.C. Nardev Singh and some other police officials. The statement made by PW-5 Sher Bahadur was treated to be a statement u/s 154 Cr.P.C. and recorded as Ext.P-L by PW-12 ASI Harbans Lal Rana. Thereafter ruqua was sent through PW-4 Constable Sanjeev Kumar to Police Station, Una for registration of FIR. Simultaneously, information as required u/s 42(2) of the Act was sent to the Superintendent of Police, Una through PW-3 Constable Suresh Kumar.

Thereafter, PW-12 formed a raiding party and two independent witnesses PW-1 Iqbal Singh and PW2 Pargan Singh were associated with the raiding party. The house of the accused was raided, where he was found sitting on a cot. The accused was informed that it was suspected that he was dealing with contraband (poppy husk) and both his house and his search was to be conducted. He was informed about his right to be searched by a Magistrate or Gazetted officer or the police. The accused allegedly agreed to be searched by the police vide Memo Ext. PA. When the search of the accused was conducted, it was found that he was concealing a bag below the arm pit and out of this bag another polythene bag was recovered from which 2 Kgs, 200 grams of poppy husk was recovered. There was another tin box inside the bag and two samples of 250 grams each were drawn and sealed with a seal impression ''A'' and thereafter the entire poppy husk was taken into possession vide recovery memo Ext. PC. The accused was thereafter arrested. After arrest, the accused made a disclosure statement in presence of the independent witnesses that he had concealed poppy husk in a gunny bag lying under the heap of grass. The said statement Ext. PR was recorded and on the basis of said statement the accused led the police party to the heap of grass and got recovered another bag which contained poppy husk. When the bag was opened it was found to contain poppy husk which on weighment was found to weigh 38 Kgs. Two samples of 500 grams each were drawn from the bulk poppy husk and the same were put in parcels which were also sealed with seal ''A''. The second bag of poppy husk alongwith sample parcels was taken into possession vide memo Ext. PG. Thereafter, other codal formalities were concluded at the spot.

On return to the police station, the case property was handed over to PW-7 SI Jagdish Chand who resealed the case property with seal ''N'' and deposited the same with PW-6 Ved Parkash who was then working as MHC Police Station, Una. PW-6 sent one sample each for chemical examination and the said samples were opined to be samples of poppy husk. On the basis of this material the accused was charged with having committed the offence aforesaid. The learned trial Court after trial acquitted the accused. Hence this appeal by the State.

The main ground which weighed with the learned trial court for acquitting the accused was that both the independent witnesses PW-1 Iqbal Singh and PW-2 Pargan Singh had turned hostile and had not supported the prosecution case at all. The learned trial Court did not discard the statement of the prosecution witnesses but found various inconsistencies in their statements and therefore, did not rely upon their testimony to convict the accused. The learned trial Court also held that the prosecution has failed to prove that the heap of grass from which the poppy husk was recovered was not belonged to the accused or to be in his exclusive possession.

We need not go into other aspects of the matter since the main question raised by Mr. Himmat Negi, learned counsel for the respondent-accused is that substance found in the possession of the accused cannot be said to be poppy within the meaning of the ''N.D.P.S. Act'' as the report of the Chemical Examiner is incomplete, which does not lead to the inference that what was recovered was opium poppy within the meaning of the Act.

Learned counsel for the respondent-accused has drawn our attention to the definition of the term ''poppy straw'' in Section 2(xviii), which reads as under:

(xviii) "Poppy straw" means all parts (except the seeds) of the opium after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.

According to the decision of the Apex Court in Ajaib Singh Vs. State of Punjab, , the term ''poppy husk'' falls within term poppy straw'' as defined in the Act. Thus, what was recovered from the possession of the appellant can be said to be poppy straw within the meaning of the definition given above. However, the mere use of the word ''poppy straw'' does not lead to the inference that it was opium poppy within the meaning of the Act. The term ''opium poppy'' as defined in Section 2(xvii) reads as under:-

(xvii) "opium poppy" 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."

All these terms were duly interpreted by a Division of this Court in Rajiv Kumar alias Guglu Vs. State of H.P., Latest HLJ 2008 (HP) 247. In that case, the Division of Division of this Court had even felt the necessity of summoning the Chemical Examiner and after referring to the statement of the Chemical Examiner and his report, the Division Bench had observed as under:-

From the definition of poppy straw, as reproduced hereinabove, it is clear that to understand the meaning of poppy straw, it is essential to refer to the meaning of opium poppy. Poppy straw, when read Alongwith the definition of opium poppy, means (a) all parts (excepts seeds) of the plant of the species of papaver somniferum-L and all parts (excepts seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted ad which the Central Government may by notification in the official gazette declare to the opium poppy for the purpose of Narcotic Drugs and Psychotropic Substances Act, 1985.

In the present case, as is clear from the statement to the Chemical Examiner, recorded by us, the two tests conducted by him to ascertain whether the stuff contained meconic acid and morphine, do not indicate that the stuff examined consisted of the parts of either the plant of the spices of papaver somniferum-L or a plant of either the plant of the species of papaver somniferum-L or a plant of any other 4 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 Narcotic Drugs and Psychotropic Substances Act, 1985. If it is so, the report of the Chemical Examiner, Ex.PW-10/L, that the stuff contains contents of poppy husk, which term is similar to the term "poppy straw" cannot be used as enough evidence to hold that the stuff recovered from the appellant, the sample of which was analyzed by the Chemical Examiner, was poppy straw.

The Division Bench while coming to the aforesaid view has relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat,

From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered in Rajiv Kumar''s case supra, it is apparent that the prosecution must prove that the parts of the plant recovered belonged to the plant of the species of papaver somniferum-L or the plant of any other species of papaver from which opium or phenanthrene alkaloid can be extracted and which plant has been duly notified by the Central Government.

In the present case, the relevant portion of the Chemical Examiner reads as follows:-

Lab No. 107/1

Lab No. 107/2

Date of receipt in the Laboratory

13.1.2003

13.1.2003

Weight (net weight) as found in Lab.

500.520 gms

250.680 gms

Date of conducting the test result of

24.3.2003

24.3.2003

Qualitative tests

Test for meconic acid

Positive

Positive

Test for morphine

Positive

Positive

It is, therefore, clear that the Chemical Examiner only found that the tests for meconic acid and morphine were positive. The Chemical Examiner has not given any opinion as to whether the parts of the plant belonged to papaver somniferum-L or not. In this case, we are not inclined to call the expert and seek his opinion since the report is identical to the report in Rajiv Kumar''s case supra. There is no mention in the report of the Chemical Examiner as to whether he conducted any test to determine the species of the plant. As such, this report is not binding.

In view of the above discussion, we hold that the report submitted by the Chemical Examiner does not prove that the contents of the sample tested were that of poppy husk within the meaning of the Act and the accused was not liable to be convicted. Once we have held that the report of the Chemical Examiner was not sufficient to prove that the contents were not of poppy husk, we are not inclined to refer to the other pleas raised that the independent witnesses had not supported the prosecution story. In view of the above discussion, we are of the considered view that the learned trial Court rightly acquitted the accused. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail Bonds discharged.