JUDGEMENT Surjit Singh, J(Oral) By this common judgment, we are disposing of two appeals, particulars whereof are given in the title hereof, because the judgment assailed in both the appeals is the same, i.e. judgment dated 27th May, 2009 of learned Additional Sessions Judge, Sirmour at Nahan. Appellants, in both the cases, have been convicted of offence, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly being in possession of 414 kgs of poppy straw. They have been sentenced toundergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, each; in default of payment of fine to undergo imprisonment for a further period of one year. 2. We may notice the prosecution version. On 30thOctober, 2007, around 8.50 p.m., when PW-17 Narveer Singh, SHO Police Station Paonta Sahib, was present at a place called Bhungrani Chowk, he received secret information from a special informer that appellant Dula Ram had kept huge quantity of poppy straw in the house of appellant Angrejo Devi, in village Nihalgarh and that both of them indulged in illicit trade of poppy straw and that in case search was conducted, immediately, huge quantity of poppy straw could be recovered. A number of police officials, including HC Rattan Singh (PW-4), HC Pratap Singh (PW-3), Constable Dhanveer Singh (PW-5) and Constable Deepak Kumar (PW-8) were accompanying PW-17 Inspector Narveer Singh, at that time. 3. Information received by PW-17 Inspector Narveer Singh was reduced into writing and sent to Dy.S.P. PW-11 Shubhra Tiwari, through PW-5 Constable Dhanveer Singh. On receipt of the aforesaid information (Ex. PW-5/A), PW-11 Dy.SP Shubhra Tiwari authorized, in writing (Ex. PW-11/A), said PW-17 Inspector Narveer Singh to conduct search of the house of appellant Angrejo Devi. The said authorization (Ex. PW-11/A) was carried to PW-17 Inspector Narveer Singh by the same Constable, namelyPW-5 Dhanveer Singh, who had carried the written information Ex.PW-5/A to the aforesaid Dy.S.P. PW-17 Inspector Narveer Singh then proceeded to village Nihalgarh. On the way, PW-1 Harpal Singh and PW-2 Gulsher Mohammed were associated as independent witnesses. 4. The police party reached the house of appellant Angrejo Devi at 10 p.m. Both the appellants were found in the verandah of the house. One room of the house was found to be bolted from outside. The party headed by PW-17 Narveer Singh searched that room and found 16 bags containing poppy straw. 4. The police party reached the house of appellant Angrejo Devi at 10 p.m. Both the appellants were found in the verandah of the house. One room of the house was found to be bolted from outside. The party headed by PW-17 Narveer Singh searched that room and found 16 bags containing poppy straw. Those were weighed at the nearby flour mill of PW-1 Harpal Singh. The total quantity was found to be 414 kgs. Two samples from each of the 16 bags, weighing 500 grams, were separated. The samples were made into separate parcels. Those parcels and the 16 bags, containing the bulk, were sealed with a seal that produced the impression of letter ‘T’ of English alphabet. Search and seizure memo was prepared. Written report of the search and seizure was sent to the Police Station, vide writing Ex. PW-8/A, on the basis of which case was formally registered vide FIR Ex. PW-13/A. NCB forms were filled-in, in triplicate. Case property was deposited with the MHC alongwith the sample parcels. One sample from each of the 16 bags was sent to the Chemical Examiner, who vide report Ex. PW-17/E gave the result as follows: “Various scientific tests such as physical tests, colour tests, Chemical tests and chromatographic tests performed in the Laboratory with the exhibit “P/1 to P/16 which indicated the presence of morphine, codeine, papaverine and meconic acid in all the sixteen samples. The results thus obtained for the sixteen samples are given below:- The exhibits “P/1 to P/16 are the sample of POPPY HUSK each.” 5. Police filed report, under Section 173 of the Code of Criminal Procedure, against both the appellants. Trial Court charged them with offence, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. They pleaded not guilty to the charge. They were, therefore, tried for the said offence. 6. Prosecution examined three police officials to prove the search and seizure, namely PW-17 Inspector Narveer Singh, PW-3 HC Pratap Singh and PW-4 HC Rattan Singh, besides examining three independent witnesses, namely PW-1 Harpal Singh, PW-2 Gulsher Mohammed and PW-9 Ram Swaroop to prove that the house of appellant Angrejo Devi was searched and 16 bags, containing poppy straw, were recovered. 7. The three independent witnesses, named above, turned hostile. 7. The three independent witnesses, named above, turned hostile. Other three witnesses, i.e. the police officials, testified that a room in the house of appellant Angrejo Devi was searched and 16 bags, containing poppy straw, aggregate weight of which was 414 kgs, were recovered from that room. 8. Prosecution also tried to show that the room, from which poppy straw had been recovered, had been rented out by appellant Angrejo Devi to the other appellant, namely Dula Ram, and it was said Dula Ram who had stacked the bags, containing poppy straw, in that room. However, it failed to prove this fact, even according to the judgment of the trial Court. 9. Appellants denied that poppy straw was recovered from the house of appellant Angrejo Devi. Appellant Dula Ram denied that he had taken any room on rent from appellant Angrejo Devi. He also denied his presence at the house of appellant Angrejo Devi, at the time of search and seizure. He claimed that he was present in his own house in a nearby village named Taruwala and that from his house he was brought to the house of appellant Angrejo Devi, in his undergarments (Katchha and Baniyan) and everything was thereafter manipulated, including his photographs alongwith the poppy straw, bags, etc. 10.Learned trial Court concluded that even though there was no evidence, indicating that appellant Angrejo Devi had rented out any accommodation in her house to appellant Dula Ram, yet presence of both of them in the house, at the time of search, indicated that both of them were in possession of poppy straw. Therefore, both the appellants were convicted and sentenced, as aforesaid. 11. We have heard the learned counsel for the appellants as also the learned Additional Advocate General and gone through the record. 12. Despite the fact that information, which was passed on to PW-17 Narveer Singh, was to the effect that both the appellants indulged in illicit trade of poppy straw, the prosecution during the course of trial tried to show that appellant Angrejo Devi had rented out a room in her house to appellant Dula Ram and poppy straw was recovered from that room. However, it failed to prove that the room from which poppy straw was recovered or for that matter any other part of the house of appellant Angrejo Devi had been rented out to appellant Dula Ram. 13. However, it failed to prove that the room from which poppy straw was recovered or for that matter any other part of the house of appellant Angrejo Devi had been rented out to appellant Dula Ram. 13. Appellant Dula Ram was present at the house of appellant Angrejo Devi, at the time of search, per testimony of PW-17 Narveer Singh and the two other police officials. According to PW-17 Narveer Singh, both the appellants were present in the verandah of the house, when the police party went there. PW-17 Narveer Singh denied that appellant Dula Ram was in his undergarments at his own house at Taruwala and from there he had been brought, without being allowed to wear his outer-garments. He even denied that appellant Dula Ram was wearing only undergarments, when the police went there. PW-3 HC Pratap Singh, however, admitted that appellant Dula Ram was wearing only undergarments, though he denied that he was brought in undergarments from Taruwala. He also stated that appellant Dula Ram was sitting on a carpet in the house, wearing undergarments, when the search was conducted. This statement of the witness contradicts the testimony of PW-17 Narveer Singh, in two respects. It contradicts PW-17 Narveer Singh’s testimony that both the appellants were standing in the verandah of the house. It also contradicts Narveer Singh’s testimony that appellant Dula Ram was not in undergarments, but was properly dressed. 14. The aforesaid contradictions, when read in the light of the finding of the trial Court, which is based on proper appreciation of evidence, that appellant Dula Ram was not shown to have taken any accommodation in the house of appellant Angrejo Devi, on rent, make the prosecution story about the contraband being in possession of appellant Dula Ram highly doubtful. This is especially so, when PW-10 Ramesh Chand, the owner of the vehicle, i.e. Pick-up Van No.HP-17B-0493, by which appellant Dula Ram had allegedly transported the contraband from a place called Teuni in Uttranchal to the house of appellant Angrejo Devi, did not support the prosecution version that his Pick-up Van was used for transportation of the contraband. 15. Learned counsel representing appellant Angrejo Devi submits that since it is the case of the prosecution itself that the recovery was effected from a room taken on rent by appellant Dula Ram, possession of the contraband cannot be attributed to appellant Angrejo Devi. 15. Learned counsel representing appellant Angrejo Devi submits that since it is the case of the prosecution itself that the recovery was effected from a room taken on rent by appellant Dula Ram, possession of the contraband cannot be attributed to appellant Angrejo Devi. The submission cannot be accepted. Appellant Angrejo Devi herself threw suggestions to two witnesses of the prosecution, namely PW-3 HC Pratap Singh and PW-17 Narveer Singh, that she had not rented out any part of her accommodation to appellant Dula Ram. That means entire house was in her possession. Therefore, presumption is that the stuff recovered from her house belonged to her and it was in her possession. 16. Another submission, which has been made on behalf of both the appellants, is that report Ex. PW-17/E of the Chemical Examiner does not prove that the stuff examined by him was poppy straw, within the meaning of Section 2(xviii), read with Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. According to the learned counsel, the Chemical Examiner has not given any opinion that the straw was of a plant of the species Papaver Somniferum-L or any other species of Papaver, notified in the Official Gazette by the Central Government, as per requirement of sub-clause (b) of Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. 17. “Poppy straw”, per its definition given in Section 2 (xviii) of the Narcotic Drugs and Psychotropic Substances Act, 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 had been extracted therefrom. “Opium poppy” is defined in Section 2 (xvii) of the Act, which reads as follows: “(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 purpose of this Act.” 18. Report Ex. PW-17/E of the Chemical Examiner shows that the Chemical Examiner conducted tests, one for finding whether the stuff contained meconic acid, morphine, codeine and papaverine. The tests yielded positive results. On the basis of these results, the Chemical Examiner gave the report that the samples were of poppy straw. Report Ex. PW-17/E of the Chemical Examiner shows that the Chemical Examiner conducted tests, one for finding whether the stuff contained meconic acid, morphine, codeine and papaverine. The tests yielded positive results. On the basis of these results, the Chemical Examiner gave the report that the samples were of poppy straw. He did not conduct any test to ascertain if the straw was part/parts of any of the plants referred to in definition 2 (xvii) of the Act, reproduced hereinabove. 19. There was a report similar to Ex. PW-17/E in a case before a Division Bench of this Court, which comprised of both of us. In that case, the Chemical Examiner was summoned and examined to ascertain how did he come to the conclusion, on the basis of the test conducted for the presence of meconic acid and morphine, that the stuff was of poppy straw. Taking into consideration the statement, which the Chemical Examiner made and also the report, the Division Bench 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 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, Ext. 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.” 20. The aforesaid case is reported in latest HLJ 2008 (HP) 247 and its title is Rajiv Kumar alias Guglu versus State of H.P. 21. Learned Additional Advocate General submits that the report, Ex. PW-17/E, submitted by the Chemical Examiner, in this case is different, in contents, from the report, which was the subject matter in Rajiv Kumar’s case (supra). 22. The aforesaid case is reported in latest HLJ 2008 (HP) 247 and its title is Rajiv Kumar alias Guglu versus State of H.P. 21. Learned Additional Advocate General submits that the report, Ex. PW-17/E, submitted by the Chemical Examiner, in this case is different, in contents, from the report, which was the subject matter in Rajiv Kumar’s case (supra). 22. We have considered the submission and also perused the report, Ex. PW-17/E. The only difference in this report, Ex. PW-17/E, and the report which had been relied upon by the prosecution in Rajiv Kumar’s case (supra) is that in the present case the Chemical Examiner conducted tests for the presence of codeine and papaverine, in addition to morphine and meconic acid, tests for which were conducted in Rajiv Kumar’s case. 23. We have consulted The New Encyclopaedia Britannica, 15th Edition, to ascertain the meaning and source of “codeine” and “papaverine”. 24. “Codeine”, as per Volume II, of the aforesaid Encyclopaedia, is methylmorphine, naturally occurring alkaloid of opium and the methyl derivative of morphine. The meaning/explanation further reads that codeine may be extracted from opium, the dried milk exudates of the unripe seed capsule of opium poppy (Papaver somniferum), but most of the codeine used in the drug industry is produced from morphine. Term “Papaverine” as such is not defined or explained in the said Encyclopaedia, but according to Volume VII, while explaining term “Papaveraceae”, it has been mentioned that morphine, heroin, codeine and papaverine are the derivatives of opium, which (opium) is derived from Papaver somniferum. 25. The Encyclopaedia Britannica, while explaining the aforesaid terms, “codeine” and “papaveraceae”, does not say that codeine or papaverine are derived from the opium obtained from a plant of species of Papaver somniferum-L. To fall in the definition of “opium straw”, the straw has to be of opium poppy of a plant of the species of Papaver somniferum-L, or any plant of a papaver species, notified by the Central Government in the Official Gazette. Report Ex. Report Ex. PW-17/E does not even say that morphine, codeine, papaverine and meconic acid found by the Chemical Examiner, in the examined stuff, were part of opium obtained from a plant of Papaver somniferum-L species, leave alone his specifically saying that the stuff was of a plant of the aforesaid species nor has he said that the same were derivatives of opium obtained from a plant of any other species of Papaver, notified by the Central Government in the Official Gazette, within the meaning of sub-clause (b) of Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. Hence, the submission made by the learned Additional Advocate General that the report, Ex. PW-17/E, is different in its contents from the report that was the subject matter of Rajiv Kumar’s case (supra), is rejected. 26. In view of the above discussion, both the appeals are accepted, judgment of the trial Court, convicting and sentencing the appellants of offence, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, is set aside and they are acquitted. They being in jail, serving the sentence awarded by the trial Court, are ordered to be released forthwith, in case their custody is not required in any other case. Both the appeals stand disposed of, in the aforesaid terms.