State of H.P. vs Sabeer

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 11.09.2002 passed by the learned Additional Sessions Judge-1, Kangra at Dharamshala, in Sessions case No. 4-N/02 whereby he acquitted the accused of having committed an offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act).

The prosecution case in brief is that on 17.12.2001 PW-8 ASI Onkar Nath alongwith constables PW-5 Raj Kumar, Sanjeev Kumar, Viond Kumar and PW-1 H.C.Subhash Chand had laid a Naka near Shitla Mata Temple at Damtal for routine checking. One person was seen coming from Pathankot side. The said person was carrying a bundle on his head. On seeing the police party the said person threw the bundle and ran back towards Pathankot side. The ASI stood next to the bundle whereas the other police officials chased the accused and he was apprehended at a distance of 50/100 meters. The bundle was checked and it contained material which appeared to be poppy husk. Thereafter, weights and scales were arranged and the poppy husk was found to be 11 kg. and 500 grams. Out of this bulk, two samples of 100 gram each were drawn and thereafter the two samples and the bulk poppy husk were sealed in three separate parcels bearing seal impression ''M''. The case property was taken into possession and statements of the witnesses, etc. were recorded. Ruqua Ext.PW-1/B was prepared and sent to the Police Station for registration of the case. On the basis of this F.I.R. Ext.PW-3/A was recorded. After completing the other codal formalities at the spot PW-8 sent a special report Ext.PW-6/A to the Superintendent of Police and he handed over the case property to ASI PW-7, who in turn deposited the case property with MHC PW-3. One sample was sent to the CTL Kandaghat and as per the report Ext.PA sent by the CTL it was opined that the exhibit contains the contents of poppy husk. On this basis the accused was charged with having committed an offence aforesaid. After trial he has been acquitted and hence this appeal by the State.

We need not go into other aspects of the matter since the main question raised by Mr. Jagdish Vats, 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 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:-

Date of receipt in the Laboratory : 20.12.2001

Weight (Net weight) as found in Laboratory: 99.0488 gms.

Date of conducting the test: 28.02.2002

Results of :-

(a) Test for meconic acid= positive

(b) Test for Morphine = positive.

(c) General Observation: 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. 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 find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.