Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 162 (HP)

Satbir Singh v. State of Himachal Pradesh

2012-04-04

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, Judge The appellant was convicted by the learned trial Court for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short the “Act”, in Sessions Case No. 11 of 2004 (Sessions Trial No. 12 of 2004), decided on 7.2.2005, for allegedly keeping in his possession 12 kilograms of “Poppy Husk” and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ` 25,000/- with default clause. Hence, the challenge in the present appeal. 2. Heard and gone through the record. 3.In short, the prosecution case can be stated thus. On 6.6.2003, PW-13 Head Constable Ram Pal was present at check post, Mehatpur (Una). Around 3.25 a.m., the bus bearing registration No. HP-36-5813, enroute from Faridabad to Jassur, reached near the aforesaid check post. It was stopped. PW-13 aforesaid alongwith other police officials, namely, PW-12 Head Constable Ram Pal, PW-2 Constable Jaswant Singh and PW-6 Govind Ram started carrying out the search of the passengers of the said bus. PW-1 Sanjiv Kumar, conductor of the bus and PW-3 Prem Chand were included as independent witnesses during the checking. The police party came across the appellant and his companion Rakesh Kumar, who were sitting holding bags in their laps. The bags were searched and the police recovered 12 kg of “Poppy Husk” from the appellant and similar substance weighing 14 kg from the co-accused Rakesh Kumar. Two samples of 100 grams from each recovery were separated. All the samples were sealed separately with the seal impression “H”. The remaining recovered stuff was also sealed with the same seal. (ii) The NCB forms in triplicate were filled in. The case property was taken into possession vide seizure memo Ex. PC, which was prepared on the spot. (iii) The report of search and seizure was prepared and sent to the Police Station for the registration of the case which culminated into FIR No. 341/2003, Ext. P.K. (iv) PW-13 Head Constable produced four sample parcels and two parcels containing the bag with remaining “Poppy Husk” therein, to the SHO for resealing. PW-10 Inspector/SHO Surinder Sharma resealed the same with seal impression “A”. The case property alongwith the seal impressions and NCB forms were deposited with MHC PW-11 Ved Prakash, which he entered in the Malkhana register. P.K. (iv) PW-13 Head Constable produced four sample parcels and two parcels containing the bag with remaining “Poppy Husk” therein, to the SHO for resealing. PW-10 Inspector/SHO Surinder Sharma resealed the same with seal impression “A”. The case property alongwith the seal impressions and NCB forms were deposited with MHC PW-11 Ved Prakash, which he entered in the Malkhana register. (v)On 7.6.2003, two sample parcels from the stuff recovered from the appellant and two sample parcels recovered from the co-accused were sent through R.C. to CTL Kandaghat alongwith sample of seals and NCB forms through PW-7 Constable Ranjit Singh. The Chemical Examiner on its analysis, opined that both the samples contained “Poppy Husk”. The report is Ext. PN on the reverse side of the form Ext. PM. The police had prepared site plan of the alleged recovery Ext. PW-13/A. The statements of the witnesses were also recorded under Section 161 of the Code of Criminal Procedure. 4.On completing the investigation, separate challans against the appellant and the co-accused were presented in the Court. They were accordingly charge sheeted to which they pleaded not guilty and claimed trial. 5. At the end of the trial, both the accused persons were convicted and sentenced vide separate judgments. 6.Co-accused Rakesh Kumar had assailed his conviction and sentence by filing a separate Criminal Appeal No. 250 of 2005 and separate appeal (Criminal Appeal No. 40 of 2005) was filed by the present appellant. The appeal filed by co-accused Rakesh Kumar was allowed vide judgment dated 13.9.2005 by this Court. As such, his conviction and sentence was set aside, precisely on the ground that the prosecution had failed to link the samples with each one of the two persons, from whom contraband stuff was alleged to have been recovered. 7. Shri N.K. Thakur, learned Senior Counsel duly assisted by Shri Ramesh Sharma, Advocate vehemently argued that evidence of both these cases with respect to the present appellant and co-accused Rakesh Kumar are the same and the same set of witnesses were examined and the present case also suffers from the similar defect as Rakesh Kumar’s case, supra. Virtually, the prosecution has failed to link the samples with the appellant. 8.I have examined the above contention in the light of the evidence. The sole recovery witness PW-1 Sanjiv Kumar, conductor of the bus, examined did not support the case of the prosecution. Virtually, the prosecution has failed to link the samples with the appellant. 8.I have examined the above contention in the light of the evidence. The sole recovery witness PW-1 Sanjiv Kumar, conductor of the bus, examined did not support the case of the prosecution. The statement of PW-12 Head Constable, Ram Pal coupled with the statements of other official witnesses, who were engaged in the checking of the bus passengers, are verbatim. They stated that the bag which was being carried by the appellant, contained 12 kilograms of the recovered stuff and the bag with another passenger Rakesh Kumar was having 14 kg of “Poppy Husk”. They also stated that two samples each from each of the bag were taken and made four separate parcels and these parcels were duly sealed with seal impression “H”. The remaining two bags were also made one separate parcel and sealed with the same seal. The seizure memo, which was prepared on the spot, is Ext. PC bearing the details of the stuff recovered from each of the accused. Pertinently, the seizure memo is one and FIR No. is 341/2003. With respect to the recovery, NCB form Ext. PM with respect to both the accused was allegedly filled in on the spot. All the four sample parcels and the remaining stuff were produced before PW-10 Inspector/SHO Surinder Sharma for the purpose of resealing and on all the sample parcels, he affixed the seal impression “A”. Further these parcels were deposited with MHC PW-11 Ved Prakash. Pertinently, there were no distinction marks on the sample parcels, which of the sample parcels pertain to which of the recovered stuff from which of the accused. All these articles were deposited in the Malkhana and its entry was made in the Malkhana register, but neither the register nor its abstract has been produced. Even the NCB form Ext. PM does not show any distinction mark on the sample parcels to connect with the particular accused and the recovery. Thus, it can be legitimately presumed that PW-11 MHC Ved Prakash did not know if both the sample parcels contained sample of the stuff found in the bag of the appellant or the sample of the stuff recovered from other passenger namely, Rakesh Kumar or that one sample was in respect of the stuff recovered from the appellant and other in respect of the stuff recovered from the co-accused. Therefore, under these circumstances, the possibility cannot be ruled out that both the samples, which were sent to the Chemical Examiner, were in respect of the stuff recovered from the other accused. The chemical examiner report Ext. PN on the reverse side of the NCB form Ext. PM does not stand linked with the recovered stuff from the appellant. 9. Also, I find that the report of analysis Ext. P.N is not in conformity with the definition of Opium Poppy.” The definitions of “Opium Straw” and Opium Poppy” given in the Act requires to be noted and the same are reproduced for ready reference: “Section 2(xviii), “poppy straw” 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.” 10. 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 (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 gazette declare to be ”Opium Poppy” for the purposes of the Act. 11. 11. In the facts and circumstances of the case, the report of the analysis aforesaid shows that tests for meconic acid and morphine were found positive and the Chemical Examiner was of the opinion that the both exhibits contain the contents of “Poppy Husk”, which means that these two tests conducted by the Chemical Examiner 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 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. If it is so, the report of the Chemical Examiner, Ex. PN 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”, as held by the Division Bench of this Court in Rajiv Kumar alias Guglu Versus State of H.P., 2008 (1) Shim. LC 168, of which, I was also one of the Members. 12. For the aforesaid reasons, in my considered opinion, the sample parcel analyzed in the laboratory could not be linked with the stuff recovered from the appellant and further that the report of the analysis does not conform to the definition of “Opium Poppy” and “Opium Husk”, so as to bring it within the mischief of contraband as defined under the Act. Thus, the impugned judgment of conviction and sentence passed by the learned trial Court against the appellant is set aside. 13. Consequently, appellant Satbir Singh stands acquitted. His sentence was suspended vide order dated 18.4.2005 on execution of the bonds, which shall stand discharged. 14. The fine amount, if any deposited, shall be refunded. 15. The appeal stands disposed of.