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2012 DIGILAW 581 (HP)

State of Himachal Pradesh v. Baldev Raj

2012-09-17

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Deepak Gupta, J. 1. This appeal by the State is directed against the judgment dated 6th May, 2004, delivered by the learned Sessions Judge, Sirmaur at Nahan, whereby the accused has been acquitted of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). 2. The prosecution story, in brief, is that on 12th September, 2002 PW-6 Inspector Khajana Ram was on patrolling duty at Bus Stand, Paonta Sahib along with other police officials. He received secret information that a person who had come from Dehra Dun side and had got down at Paonta Sahib Bus stand was carrying huge amount of poppy husk. On receipt of this information, he sent a written information vide Ext PW-4/A to the superior police officer. Two independent witnesses were associated and thereafter the accused was apprehended. He was carrying a suit case and a Jute bag. After complying with all the formalities, the Jute bag and suit case were searched. When the Jute bag was opened it contained 13 polythene packets containing poppy husk. Inside the suit case there were 8 polythene packets containing poppy husk. Each of the packets weighed 1 Kg. According to the prosecution one sample each was taken from the contents of the suit case and of the Jute bag. Thereafter these two samples were sent to the Chemical analyst who opined that the samples contained the elements of poppy husk. On this basis, the accused was challaned and charged with having committed the offence aforesaid. 3. The learned trial Court acquitted the accused on the ground that the report Ext. PW-4/A sent through envelope does not mention the FIR number and there is variation in the quantity which was sent and examined by the Chemical Examiner. We are not going into these aspects of the matter since Mr. K.B. Khajuria, learned counsel for the accused has raised two issued. The first is that when there was as many as 8 packets in the suit case and 13 in the Jute bag i.e. 21 packets either 21 samples should have been taken or there should have been evidence that the contents of 8 or 13 packets, as the case may be, were combined and mixed together and then representative samples of the entire contraband being carried in the Jute bag and Suit case were drawn. The Contention of Mr. K.B. Khajuria, Advocate, has merit because when the contraband was packed in separate packets, drawal of sample from one of the packets could not indicate that the other packets in the suit case or in the Jute bag also contains the same contraband. 4. The second question raised by Mr. K.B. Khajuria, learned counsel for the respondent-accused is that substance found in the possession of the accused cannot be said to be poppy within the meaning of the ‘NDPS Act’ as the report of the Chemical Examiner is incomplete, which does not lead to the inference that what was recovered was opium poppy within the meaning of the Act. 5. The learned counsel for the respondent has drawn our attention to the definition of term ‘poppy straw’ used in Section 2(xviii), which reads as under: “(xviii) ”Poppy straw” means all parts (except the seeds) of the opium after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.” 6. According to the decision of the Apex Court in Ajaib Singh versus State of Punjab, 2000, CRI. L.J. 2270, the term ‘poppy husk’ falls within term ‘poppy straw’ as defined in the Act. Thus, what was recovered from the possession of the appellant can be said to be poppy straw within the meaning of the definition given above. However, the mere use of the word ‘poppy straw’ does not lead to the inference that it was opium poppy within the meaning of the Act. The term ‘opium poppy’ has been defined in Section 2(xvii) as under:- “(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. All these terms were interpreted by a Division Bench of this Court in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247. All these terms were interpreted by a Division Bench of this Court in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247. In that case, the Division Bench of this Court had even felt the necessity of summoning the Chemical Examiner and after referring to the statement of the Chemical Examiner and his report, the Division Bench had observed in Paras 8 and 9 of the judgment as under:- “8. 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 (excepts seeds) of the plant of the species of papaver omniferum-L and all parts (excepts seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted ad which the Central Government may by notification in the official gazette declare to the opium poppy for the purpose of Narcotic Drugs and Psychotropic Substances Act, 1985. 9. 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, 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 sample of which was analyzed by the Chemical Examiner, was poppy straw.” 8. The Division Bench while coming to the aforesaid view relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot versus State of Gujarat, (2005) 7 SCC 550 . 9. The Division Bench while coming to the aforesaid view relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot versus State of Gujarat, (2005) 7 SCC 550 . 9. From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered in Rajiv Kumar’s case supra, it is apparent that the prosecution must prove that the parts of the plant recovered belonged to the plant of the species of papaver somniferum or the plant of any other species of papaver from which opium or phenanthrene alkaloid can be extracted and which plant has been duly notified by the Central Government. 10. In the present case, the relevant portion of the report of the Chemical Examiner reads as follows:- Lab No.2486/1 Lab No. 2486/2 Date of receipt in the Laboratory 15.9.2003 15.9.2003 Weight (net weight) as found in Lab. 111.0489 gms 118.0124 gms Date of conducting the test result of 21.11.2003 21.11.2003 Qualitative tests Test for meconic acid Positive Positive Test for morphine Positive, Positive It is, therefore, clear that the Chemical Examiner only found that the tests for meconic acid and morphine were positive. The Chemical Examiner has not given any opinion as to whether the parts of the plant belonged to papaver somniferum or not. In this case, we are not inclined to call the expert and seek his opinion since the report is identical to the report in Rajiv Kumar’s case supra. There is no mention in the report of the Chemical Examiner as to whether he conducted any test to determine the species of the plant. As such, this report is not binding. 11. In view of the above discussion, we hold that the report submitted by the Chemical Examiner does not prove that the contents of the sample tested were that of poppy husk within the meaning of the Act and the respondent was not liable to be convicted. Therefore, we find no merit in this appeal, which is accordingly rejected. Bail bonds discharged.