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2011 DIGILAW 2212 (HP)

State Of H. P. v. Sucha Singh

2011-06-03

R.B.MISRA, SURINDER SINGH

body2011
JUDGMENT : Surinder Singh, J. The State has challenged the acquittal of the respondents passed in Sessions Trial No. 18-ST/7 of 2001 on 18.10.2011 by learned trial Court, for the offence punishable under Sections 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act', for allegedly keeping in possession 5.800 Kgs. of Poppy Husk. 2. In short, the prosecution story as emerges from the evidence on record can be stated thus. On 26.11.2000, at 8 a.m., PW1 Shyam Lal Excise Inspector was present at Gobindghat barrier, in connection with his duty. In the meantime, a truck bearing registration No.UP-07-G-8395 came from the side of Dehradun. It stopped for the payment of toll tax. Respondent Kamaljeet Singh was on the driving wheel and another accused Sucha Singh was sitting besides him. PW1 aforesaid along with his officials started carrying out the general checking, but the respondents insisted upon to allow them to cross the barrier hurriedly. PW1 informed PW10 SI Parkash Chand who was nearby also got suspicious that they might be carrying some narcotic substance in the truck. S.I. Parkash Chand expressed his intention to conduct the search of the truck and obtained the consent memos Ex.PH & PJ in the presence of witnesses PW9 Shashi Kumar, Pawan Kumar (not examined) and PW1 Shyam Lal. Thereafter, police search party rendered themselves to be searched by the accused persons, but nothing incriminating was found in their possession. To this effect, memo Ext. PB was executed in the presence of witnesses PW1 Shyam Lal and PW9 Shashi Kumar. (ii) Thereafter, PW10 SI Parkash Chand along with the police constables entered into the truck and conducted its search. During search, the PW10 discovered one packet of plastic kept in the tool-box of the truck. It contained 5.800 Kgs. of "Poppy Husk" in four packets. Thus, one sample from each was separated and sealed with seal impression 'K', the remaining stuff was sealed with the same seal by packing it in parcel. The facsimile of the seal was taken on the NCB forms and also on a piece of cloth. Case property was taken into possession vide memo Ext.PA (iii) PW10 SI Parkash Chand prepared a Ruqa Ext.PC and sent it to the Police Station Paonta Sahib, for the registration of the case, which culminated into FIR Ext. PD. Police prepared the site plan Ext. PN and arrested the respondents. Case property was taken into possession vide memo Ext.PA (iii) PW10 SI Parkash Chand prepared a Ruqa Ext.PC and sent it to the Police Station Paonta Sahib, for the registration of the case, which culminated into FIR Ext. PD. Police prepared the site plan Ext. PN and arrested the respondents. Grounds of arrest were also intimated to them. Statements of the witnesses were recorded and the case property was produced before PW8 Inspector/SHO Gurdial Singh. He resealed the case property with his own seal producing the impression of English letter 'T' and prepared the resealing memo Ext. PF, thereafter deposited the same with PW4 MHC Bhim Singh for its deposit in the Malkhana. (iv) On 28.11.2000, all the four sample parcels were sent to the CTL Kandaghat through PW5 HC Amar Singh for analysis. Samples aforesaid were analysed in CTL and issued report Ext. PG showing that all the samples on analysis were found brown coarse powder which contained me conic acid and morphine. In the opinion of the Chemical Examiner, the contents of the sample parcels were of "Poppy Husk". 3. After completing the investigation, police prepared the challan and presented it in the Court for the trial of the respondents. Accordingly, they were charge-sheeted, tried and acquitted for the offences aforesaid, on the grounds that the independent witnesses turned hostile and the consent for search was not proper and also that there was no evidence that the NCB forms were deposited in the Malkhana by the SHO, Police Station Paonta Sahib and sent to the Chemical Examiner with the sample parcels. 4. On reappraisal of the evidence, we find and hold that the hostility of the witnesses itself is no ground to acquit the respondents provided the statements of official witnesses inspire confidence and further that Section 50 of the Act in the instant case is not attracted at all. So far as the non-deposit of NCB forms and sample seals are concerned, of course, there is no evidence about its deposit along with case property in the Malkhana with MHC nor the abstract of the Malkhana register has been produced and proved in evidence. So far as the non-deposit of NCB forms and sample seals are concerned, of course, there is no evidence about its deposit along with case property in the Malkhana with MHC nor the abstract of the Malkhana register has been produced and proved in evidence. On the top of it, copy of the Road Certificate against which the case property was taken to the CTL Kandaghat also did not find the light of the day, which would have guided us to come to the conclusion whether the NCB forms and sample of seal accompanied the samples, which could have facilitated the Chemical Examiner to tally the facsimile of the seal which were found on the samples. In absence of this evidence, the lithographic impression certifying that the sample of seal tallied with the seals found on the sample is affixed in a mechanical way to complete the formality, which is sufficient to create doubt on probity of prosecution case. 5. The above position apart, we also find that the prosecution has failed to prove that the recovered stuff fall within the definition of "Poppy Straw". 6. Section 2(xviii), defines "poppy straw" which 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 therefrom. 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. 7. From the definition of "Poppy Straw" reproduced herein above, it is clear that to understand the meaning of "Poppy Straw", it is essential to refer to the meaning of "Opium Poppy". The "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 somniferum-L and all parts (except seeds) of the plant 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 Gazetted declare to be opium poppy for the purposes of this Act. 8. 8. Further the Apex Court in Ajaib Singh v. State of Punjab, (2000) Cri.L.J. (SC) 2270, held that even though the term "Poppy Husk" has not been defined in the Act, but the term "Poppy Straw" has been defined. The term "Poppy Straw" includes all parts (except the seeds) of "Opium Poppy". "Opium Poppy" means the plant of the species papaver. Thus, except for the seed all other parts of the plant of the species Papaver would fall within the term "Poppy Straw". 9. In the present case, it is clear from the report of analysis referred to above that three tests were conducted by the Chemical Examiner to ascertain whether the stuff contained meconic acid and morphine and also by physical appearance, 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 Government may have notified to be the opium poppy for the purposes of the Act. Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls within the definition of "Poppy Straw". 10. In this behalf, we derive the strength of the judgment of Amar Singh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550 which has also been relied upon by the Division Bench of this Court in Rajiv Kumar alias Guglu v. State of H.P., [ 2008 (1) Shim.L.C. 168 ]. 11. In view of the above stated position, we do not find any ground to interfere with the acquittal of the respondents. Accordingly, the appeal filed by the State is devoid of any merit, therefore dismissed. 12. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. 13. Send down the records.