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2012 DIGILAW 289 (HP)

State of H. P. v. Jugal Kishore

2012-05-16

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT : R.B. Misra, J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 29.9.2006, passed by Learned Additional Sessions Judge, Una, H.P. in Sessions Case No.21 of 2004, Sessions Trial No.7 of 2005, acquitting the alleged accused/respondent under Section 18 of the Narcotic Psychotropic Substances Act, 1985 (in short 'NDPS Act'), in reference to FIR No.795 of 2003 dated 11.12.2003. 2. The prosecution case, in brief, is that on 11.12.2003, the police party apprehended the accused-respondent and recovered 260 grams of opium from his possession. Two samples of 10 grams each were taken out from the recovered opium and sealed with seal impression 'B'. Remaining bulk was also sealed with same seal. On 12.12.2003 one sealed sample along with 'NCB Form' were sent for chemical examination. Keeping in view the Chemical Examiner's report and the investigation, accused was charged for the aforesaid offence. 3. In order to prove its case, the prosecution examined as many as 13 prosecution witnesses. Whereas, the accused/respondent through his statement under Section 313 of Cr.P.C. has denied the prosecution case. 4. On analysis of the prosecution witnesses and material on record, learned Additional Sessions Judge, Una, has arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on many other grounds, one important aspect which needs consideration is that on perusal of Ex.PW.12/D, it appears that 'NCB Form' was not filled in on the spot. From the perusal of Ex.PW.12/D, every doubt is created that the 'NCB Form' was not filled in on the spot and Chemical Examiner has observed that the meconic acid was found positive and morphine was also found positive. In these circumstances, Chemical Examiner has opined that the contraband good so recovered was opium. 5. In similar facts and circumstances, this Court (DB) has taken similar view vide judgment dated 03.05.2011 passed in Cr. Appeal No.483 of 2001 (State of H.P. v. Ashwani Kumar & Another) the contraband good recovered cannot be opium. The relevant paragraphs of the aforesaid judgment are reproduced as below:- 14. In Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 SCC (Cri.) 1704, the Hon'ble Apex Court, has held as under vide paras 12, 14 and 15:- "12. Appeal No.483 of 2001 (State of H.P. v. Ashwani Kumar & Another) the contraband good recovered cannot be opium. The relevant paragraphs of the aforesaid judgment are reproduced as below:- 14. In Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 SCC (Cri.) 1704, the Hon'ble Apex Court, has held as under vide paras 12, 14 and 15:- "12. Sections 17, 18 and 21 of the NDPS Act are intended to operate in different circumstances. Section 17 prescribes the punishment inter alia for possession of "prepared opium", Section 18 prescribes the punishment inter alia for possession of "opium" and Section 21 deals with the punishment inter alia for possession of "manufactured drugs". Each one of these terms has been defined in the NDPS Act. "Opium" is defined in Section 2(xv) as: "2.(xv) "opium" means (a) the coagulated juice of the 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;" 14. There does not appear to be any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy". FSL has given its opinion that it is "opium as described in the NDPS Act." That is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to "opium derivative" within the meaning of Section 2(xvi) (e). Clause (a) of Section 2(xi) defines the expression "manufactured drug" as: "2. (xvi) 'manufactured drug' means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) * * *" All "opium derivatives" fall within the expression "manufactured drug" as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was "manufactured drug" within the meaning of Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was "manufactured drug" within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of "manufactured drug". 15. Relying upon the case of Amarsingh Ramjibhai Barot, supra, a Division Bench of this Court in Daulat Ram v. State of Himachal Pradesh, 2007 (2) Shim.LC 282 , has held as under, vide paras 8, 9 and 10 of the judgment:- "8. From a bare reading of the definition of opium, it is clear that "opium" means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine. 9. In the present case, report of the Chemical Examiner Ex.PR says that the samples were tested for meconic acid and morphine. Report does not say that the stuff was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent. 10. The Hon'ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 SCC(Cri.) 1704, has held that where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy out simply expresses the opinion that he stuff is opium, as defined in the Narcotic Drugs and Psychotropic Substances Act, such a report is not acceptable and not binding on the Court. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent." 16. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent." 16. When CTL report Ex.PD is considered it the light of the law laid down by the Hon'ble Apex Court, as followed by this Court in the aforesaid judgments, it is abundantly clear that the conclusion arrived at thereunder simply goes to show that the samples of the contraband allegedly recovered from the convict tested positive for meconic acid and morphine and were found to contain contents of opium. However, the report is not in accordance with the definition of opium contained in Section 2(xv) of the NDPS Act, as the same is absolutely silent about the presence of "the coagulated juice of the opium" and "percentage of morphine" and as such cannot be relied upon to fasten criminality against the accused for the offence for which he was charged. 6. In the present case also Ex.PW.13/B indicates that Chemical Examiner has found meconic acid and morphine positive and in these facts and circumstances, has opined that contraband good so recovered is opium. Whereas, in view of the observations made in Ashwani Kumar & Another (supra), the Chemical Examiner has not mentioned that "contraband good contained the coagulated juice of the opium" and has also not mentioned the "percentage of morphine". More so, the Chemical Examiner has also not mentioned that the contraband good is within the definition of Section 2(xv) of the NDPS Act. 7. In view of the above observations, the prosecution has failed to bring home the guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. Bail bonds furnished by the respondent/accused are hereby discharged.