State of H.P. vs Mehar Chand

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 22.12.1999, whereby the learned Special Judge acquitted the accused of having committed an offence punishable u/s 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ''Act'').

Briefly stated the facts of the case are that the police received secret information that the accused who is working in a Dhaba is dealing in the sale of contraband. The police party led by PW-8 SI Ashok Kumar after recording his reasons of belief vide memo Ext.PW-3/A went to the Dhaba along with Constable Jaswant Singh, Gurbax Singh and Chuhru Ram. Accused Mehar Chand was found present at the Dhaba. He was employed there. After giving him an option, the accused was searched and the search of the Dhaba was also conducted. From the right pocket of accused Mehar Chand, three packets were recovered. These contained opium wrapped in polythene. Thereafter the police party searched the hearth (Bhathi) and behind the hearth inside a tin container which had wheat in it, seven more packets were recovered which contained opium. On weighment of the opium, it was found that 25 gms. opium had been recovered from the possession of the accused and 50 gms. from the tin container. Two samples of 9 gms. each were taken from the opium recovered from the tin container and two samples of 8 gms. each were taken from the opium recovered from the pocket of the accused. These were sealed with seal impression ''B'' and thereafter rukka was sent to the police for registration of the case. The accused was made to face trial and after trial has been acquitted. The main reasons which weighed with the trial Court were that there was non-compliance of Section 55 of the Act and the independent witnesses have not supported the prosecution.

This appeal can be disposed of on one short ground. We need not go into other aspects of the case since we are of the view that even the report of the Chemical Examiner does not indicate that any offence within the meaning of the Act was committed.

According to the learned Counsel for the accused, the prosecution has failed to prove that the stuff which was recovered from the Appellant/accused was opium within the meaning of Section 2 Clause (xv) of the Act. According to him, the report of the Chemical Examiner Ext.PX, does not show that the stuff recovered from the accused was coagulated juice of opium poppy or that it was a mixture of coagulated juice with some other material having morphine content of more than 0.2 per cent. Opium has been defined, as follows under Clause (xv) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985:

opium means----

(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 morphine.

From a bare reading of the definition of opium, it is clear that "opium" means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine.

In the present case, according to the report of the Chemical Examiner Ex. PX, the samples were tested for meconic acid and morphine. Report does not say that the substance which was tested was coagulated juice of opium poppy or it was a mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent.

The apex Court in State of Punjab Vs. Prem Sagar and Others, dealt with the question as to whether the analysed substance was opium or not. The apex Court referred to various provisions of the Act including the definition of opium and opium derivative and held as follows:

The Appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the Appellant was "opium as described in the NDPS Act" containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample.

There does not appear to be any acceptable evidence that the black substance found with the Appellant was "coagulated juice of the opium poppy" and "any mixture, with or without any neutral material, of the coagulated juice of the opium poppy". FSL has given its opinion that it is "opium as described in the NDPS Act". That is not binding on the court.

In the said case the Apex Court has clearly held that the Forensic Science Laboratory (FSL) should not only give its opinion as to what is the substance but should indicate that the substance is a contraband by indicating what was contained in the substance.

Following the aforesaid judgment of the Apex Court, a Division Bench of this Court in Daulat Ram v. State of H.P 2007 (2) Shim. L.C. 82, wherein these reports were virtually identical, held as follows:

In the case before us, as already noticed, the report does not say that the substance is coagulated juice or is a mixture of coagulated juice with some other material having morphine content more than 0.2 per cent. Therefore, the report is held to be unacceptable and not binding. Now, if the report is excluded, there remains no evidence in support of the prosecution allegation that the stuff recovered from the Appellant is opium.

We are bound by the judgment of the Supreme Court as well as the earlier judgment delivered by a Division Bench of this Court. The report Ex.PX in the present case also does not disclose that the substance which was analysed was coagulated juice of the opium or it was a mixture with or without some other material. There is no mention as to what were the morphine contents. It is only mentioned in the report in respect of the morphine is that sample tested positive for morphine but does not show what was the percentage of morphine. The morphine content should have been at least 0.2%. The report is totally silent on this aspect. This report, therefore does not help the prosecution. There is no other evidence in the matter with regard to the identity of the substance.

In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.