State of H.P. vs Karnail Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 31.3.2010 passed by the learned Additional Sessions Judge, Una in Sessions Trial No. 9 of 2003 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 on 17.3.2002 at about 3.45 pm, PW-7 HHC Kuldeep Singh received secret information on the basis of which he lodged a report in Police Post, Haroli with PW-12 ASI Jaswinder Singh. According to this report, the accused was dealing in the sale of poppy husk and was likely to be present at Bhatha Kuthar Beet to sell the same. Police swung into action and a raiding party was formed in which two independent witnesses PW-10 Ashwani Kumar and PW- 11 Kashmiri Lal were also associated. The accused was apprehended near the brick kiln at Kuthar Beet and when the hand bag being carried by the accused was searched, some substance was recovered which appeared to be poppy husk. The said substance was weighed and found to weigh 1Kg 500 grams. Two samples of 100 grams each were drawn. These two samples and the remaining bulk poppy husk were sealed with seal bearing seal impression ''X'' and taken into possession vide memo Ext. PW-9/C. After completing codal formalities at the spot, the case property was produced before the SHO, Una who resealed the same with another seal bearing seal impression ''B''. One sample was sent to the CTL Kandaghat and vide report Ext. PW-12/D it was opined that the exhibit contains contents of poppy husk. On this basis, the accused was charged with having committed the offence aforesaid.

The accused has been acquitted on other grounds, but in appeal, the main contention of the Mr. Ramesh Sharma, learned counsel appearing for the respondent, is that the poppy husk recovered at the spot allegedly from the possession of the accused cannot be said to be poppy within the meaning of the Act as the report of the Chemical Examiner is incomplete and does not lead to the inference that what was recovered was opium poppy within the meaning of the Act.

The learned counsel for the respondent has drawn our attention to the term ''poppy straw'' used 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'' has been defined in Section 2(xvii) 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 interpreted by a Division Bench of this Court in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247. In that case, the Division Bench 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 in Paras 8 and 9 of the judgment 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 along with the definition of opium poppy, means (a) all parts (excepts seeds) of the plant of the species of papaver omniferum-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 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 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 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 report of the Chemical Examiner reads as follows:-

Result of:

(a) Test for meconic acid: Positive

(b) Test for morphine: Positive.

(c) General Observation of the chemist: 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 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 respondent was not liable to be convicted. Therefore, we find no merit in this appeal, which is accordingly rejected. Bail bonds discharged.