State of H.P. vs Shaukat Ali

R.B. Misra, Judge

The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 27.2.2007 passed by learned Sessions Judge, Sirmaur District at Nahan, HP in Sessions Tr. No. 04-ST/7 of 2006 thereby acquitting the respondent / accused of the offence under 15 of ND & PS Act, 1985 in reference to FIR No. 40/2005. The prosecution case, in nut shell, is that on 29.1.2005 at about 1.40 PM when H.C. Bahadur Singh (PW-16) of CIA staff Nahan along with HC Vinoj Kumar, HC Suresha Nand, Constable Shamim Akhtar and Constbale Staya Parkash present at Bata Mandi, Tehsil Paonta Sahi had received secret information that accused Shaukat Ali was coming from forest side, carrying Poppy straw in a gunny bag. Such information was reduced into writing and same was sent to SDPO, Poanta Saib through Constable Satya Parkash. A raiding party was formed by associating two independent witnesses i.e. Kasim Ali (PW-3) and Ashraf Ali (PW-1). The accused was nabbed and on search of plastic bag, being carried by the accused from which Poppy Husk measuring 6 Kgs 500 grams was recovered. Out of the Poppy Husk so recovered two samples of 100 grams each were drawn separately and were sealed with seal impression ''T''. Two samples were sent for chemical examination and after investigation accused/respondent was charged of the aforesaid offence.

In order to prove its case, prosecution has examined as many as 16 prosecution witnesses, whereas to his statement, u/s 313 Cr.P.C, accused/respondent denied the prosecution case.

Inter-alia, on many other grounds as referred by learned Sessions Judge, Sirmaur District at Nahan, the important aspect which needs consideration is that on chemical analysis it was found in the chemical report that the test for meconic acid and morphine is positive. The Chemical examiner has opined that the contraband recovered was containing the contents of Poppy Husk.

For correctly adjudicating the present appeal, it is necessary to refer to paras 7, 8, 9 & 10 of the Division Bench judgment passed by this Court in Rajiv Kumar alias Guglu Vs. State of H.P., as under:

definitions of ''poppy straw'' and ''opium poppy'' given in the Narcotic Drugs and Psychotropic Substances Act, 1985, need to be noticed. The same are reproduced here for ready reference:- "Section 2 (xvii), ''opium poppy'' means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from.

Section 2(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.

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 (except seeds) of the plant of the species of papaver sommiferum-L and all parts (except seeds) of the plaint of any other species of papaver from which opium or any other 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 Narcotic Drugs and Psychotropic Substances Act, 1985.''

In the present case, as is clear from the statement of 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 plaint 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 Govenrment 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 same of which was analyzed by the Chemical Examiner, was poppy straw.''

In this view of the matter, we derive strength from a judgment of the Hon''ble Supreme Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat, Facts of that case were that some black substance, looking like opium, was recovered from the accused. A sample of the substance was sent to the Chemical Examiner, who reported that the sample was ''opium as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, containing 2.8 percent anhydride morphine and also pieces of poppy flowers (posedoda)''. The Hon''ble Supreme court noticed the definition of opium as given in Section 2 (xv) of the Narcotic Drugs and Psychotropic Substances Act, 1985, according to which, ''opium'' means (a) the coagulated juice of 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 percent of morphine. The Hon''ble Supreme Court held that there did not appear 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'' and that the opinion given by the FSL that it was opium, as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, was not binding on the Court.

On analysis the facts and circumstances of the present case, we notice that in view of the observations made above in Rajiv Kumar @ Guglu (supra), contraband goods as recovered in that case was also not held to be ''poppy husk''. In view of the aforesaid facts, we also hold that the contraband goods recovered from the accused/respondent has not been proved to be poppy husk within the definition of ND & PS Act, As such, the conviction of the appellant is not sustainable on these aspects also.

Consequently, in our considered view, prosecution has failed to prove its case beyond reasonable doubt. Therefore, the criminal appeal, being devoid of merit, is accordingly dismissed. The bail bonds, furnished by the accused/ respondent, are discharged.