State of H.P. vs Harbinder Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 19.08.2003 delivered by the learned Sessions Judge, Una, in Sessions Case No. 13 of 2002 whereby he acquitted the accused of having committed an offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution story in brief is that on 17.12.2001 PW-1 ASI Jaswinder Singh received secret information to the effect that the two accused were coming from Punjab side on scooter bearing No. PB-07C-9225 and they were carrying poppy husk. It was alleged that they were going towards Haroli. Thereafter PW-1 Jaswinder Singh got his statement recorded before SI Baldev Ram PW-13 about the receipt of this information. Thereafter this information was sent through constable Suresh Kumar PW-2 to Police Station, Una on the basis of which F.I.R. Ext.P-6 was registered. Information u/s 42 was sent vide Ext.P-2 to the Superintendent of Police through constable Yashpal PW-3. Thereafter, PW-13 SI Baldev Ram alongwith other police officials went to Palkwah Chowk. PW-11 Gurdas Ram and Krishan Singh were associated as independent witnesses with the raiding party and a Nakka was laid at Palkwah Chowk. At about 8.35 a.m on 17.12.2001 scooter in question came towards the Chowk from Polian side. Accused Harbinder Singh was driving the scooter whereas Gurmail Singh was pillion rider. The scooter was got stopped and the search was conducted and during the search of the scooter a bag Ext.PW-11/J was found hanging with the hook of the scooter and inside the bag there were two polythene bags. When the polythene bags were opened contraband was found which on smelling appeared to be poppy husk. On weighment the entire substance was found to be 1 Kg. and 800 grams. Thereafter, two samples of 100 grams each were drawn and the said two samples and the remaining poppy husk were sealed in three separate parcels with seal bearing seal impression ''H''. Other codal formalities were completed at the spot. One of the samples of poppy husk was sent for chemical analysis through constable Lal Chand PW-6 to CTL Kandaghat. Report of the chemical examiner Ext. PW-5/A shows that the sample was of puppy husk. On this basis the accused were charged with having committed the offence aforesaid.

The learned trial Court acquitted the accused on the ground that PW-11 Gurdas Ram had not supported the case of the prosecution as he had stated that he had only signed the papers as asked by the police and no search was conducted in his presence. Despite the fact that Gurdas Ram had turned hostile the second witness Krishan Singh was not examined and there is no plausible explanation for his non examination. In such circumstances the evidence of the official witnesses had to be read with greater care and caution. The learned trial Court observed that though the official witnesses have stated that other than the two independent witnesses above named no other person could be associated but the site plan Ext.PW-13/A clearly shows that there were shops of a number of persons near the Chowk and there is no explanation why those persons were not associated with the search and seizure operation. Another ground which weighed with the learned trial Court is that PW-13 SI Baldev Ram allegedly deposited the samples with PW-4 ASI Avtar Singh who resealed the same with seal impression ''H'' but nobody has come to produce the seal ''H'' or deposed in Court as to where this seal was kept. Most importantly the report of Chemical Examiner does not show that the substance in question was poppy husk.

The Chemical Examiner in his report has only stated that he is of the opinion that exhibit contains contents of poppy husk. The report Ext. PW-5/A is not sufficient to hold the accused guilty. Opium poppy has been defined in Section 2 (xvii) of the Act as under:-

(xvii) "opium poppy" means-

(a) The plant of the species papaver somniferum-L; and

(b) The plaint 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.

The question as to what is opium poppy was considered by a Division Bench of this Court in Rajiv Kumar alias Guglu Vs. State of H.P., Latest HLJ 2008 (HP) 247, wherein this Court held as follows:

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 part 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 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.

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 part 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:-

Date of conducting the test 28.2.2002

a)Qualitative test: Test for meconic acid

= Positive.

b) Results of Quantitative test Test for morphine

= Positive.

General observation of Chemical Examiner.

I am of the opinion that the exhibit contains the contents of poppy husk.

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. 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 sufficient to hold the accused guilty. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.