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Himachal Pradesh High Court · body

2012 DIGILAW 909 (HP)

State of Himachal Pradesh v. Janak Singh

2012-12-01

R.B.MISRA, SURINDER SINGH

body2012
Judgment Surinder Singh, J. Respondent was chargesheeted, tried and acquitted for the offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in his possession 4.5 kg of poppy husk in the bag held by him in his hand and also 15 kg alleged to have been recovered at his instance from a cowshed. The acquittal has been challenged by the State in the present appeal. 2. Precisely, the case, as set-up by the prosecution is that on 6.5.2003 PW9 H.C. Nardev Singh was present at ‘Kuthar beet’ near ABC brick-kiln along with few constables. (ii) Around 11.20 a.m. constable Upnesh Kumar informed that accused had been dealing in poppy husk. If the raid is conducted, a good deal of recovery can be effected. As such, his statement Ext. PW1/A was recorded under Section 154 of the Code of Criminal Procedure. After making endorsement thereupon, it was sent for the registration of the case which culminated into FIR Ext. PW9/A. He also jotted down the information to comply with the provisions of Section 42 (2) of the Act, copy whereof is Ext. PW3/A, and sent through HHC Rajinder Singh to the S.P. Office Una. (iii) Thereafter raiding party was formed, two independent witnesses, namely, PW2 Pawan Kumar and Ram Krishan (not examined) were joined as independent witnesses and then they proceeded towards the water-pond located near the house of the accused. Accused was found carrying a plastic bag in his hand. (iv) PW9 HC Nardev Singh informed the accused the purpose of their visit and also about entertaining suspicion upon him that he might be dealing in narcotic. To satisfy the provisions of Section 50 of the Act, he gave him an option to be searched either before the Magistrate or the Gazetted Officer in writing Ext. PW9/C. The accused opted to be searched by the police party. (v) Thereafter, PW9 rendered himself to be searched by the accused but nothing incriminating object/article was found. Then the personal search of the accused was conducted. During the personal search of the accused, nothing was found but when the bag which was held by him was searched, it contained 4.5 kg. of poppy husk. Out of the recovered stuff, he took two samples of 250 grams of each and each of the parcels were sealed with seal impression ‘N’. During the personal search of the accused, nothing was found but when the bag which was held by him was searched, it contained 4.5 kg. of poppy husk. Out of the recovered stuff, he took two samples of 250 grams of each and each of the parcels were sealed with seal impression ‘N’. The remaining bulk was also sealed with the same seal and taken into possession vide memo Ext.PW9/E in the presence of witnesses. He also prepared site plan Ext. PW9/F of the place of alleged incident. (vi) The accused was arrested and grounds of arrest were informed to him in writing Ext. PW9/G. (vii) During interrogation of the accused, he is alleged to have made a disclosure statement Ext. PW9/H to the said police officer pursuant to which he got recovered 15 kg of poppy husk from a shed adjoining to his house from beneath the tudi (fodder). After its recovery, two samples of 250 grams each were separated and sealed with seal impression ‘N’. The recovered poppy husk along with sample parcel was taken into possession vide memo Ext. PW9/I. The seal was again handed over to Ram Krishan witness. (viii) NCB forms in triplicate, one of which is Ext. PW4/A was prepared. Specimen of seal was taken on a piece of cloth Ext. PW9/L. The statements of witnesses were recorded. Thereafter the entire case property was produced before PW4 Inspector/SHO Harnam Singh who re-sealed each of the parcels with seal impression ‘A’ and filled in the relevant columns of NCB forms. (ix) Thereafter the case property was handed over to PW5 MHC Balbir Singh who deposited it in the Malkhana after making its entry into the relevant register. (x) On 8.5.2003 two sample parcels along with NCB forms and sample of seal were sent vide RC No. 86 of 2003 through PW6 HHC Surnit Singh to which he deposited on the same day in the Laboratory. The report is Ext. PW7/A. In the qualitative test, the examiner found the meconic acid and morphine both positive. On the basis of this result, he was of the opinion that both the exhibits contained “poppy -husk”. 3. Accordingly, the challan was presented in the court for the trial of the accused to which he pleaded not guilty and claimed trial. 4. PW7/A. In the qualitative test, the examiner found the meconic acid and morphine both positive. On the basis of this result, he was of the opinion that both the exhibits contained “poppy -husk”. 3. Accordingly, the challan was presented in the court for the trial of the accused to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon him were put to him to which he denied. 5. When called upon to enter into his defence, he examined DW1 H.C. Sukhdev Singh to prove that there was no entry of the special report which was required to be sent to the Officer superior to satisfy the provisions of Section 57 of the Act. 6. At the end of the trial, accused was acquitted on the ground that the independent witnesses had turned hostile and there were material discrepancies in the statements of the official witnesses. Further that the recovery at the instance of the accused was not connected with the accused and also that there was no mention of holding the bag in his hand as per Ext. PW9/C. 7. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Ramesh Thakur, the Assistant Advocate General vehemently argued that the learned trial Court has not appreciated the evidence on record in the right perspective and the statements of the official witnesses were wrongly ignored which proves the case against the accused. Further that the observations of the learned trial Court that there was no mention of bag held by the accused in the memo Ext. PW9/C, is not relevant to the facts of the case as this option was given for the personal search of the accused and not to search a bag. He also took us through the seizure memo wherein this fact finds mentioned that accused was holding a bag in his hands which contained 4.5 kg of poppy husk. 8. On the other hand Shri N.K. Thakur, learned Senior Advocate duly assisted by Shri Umesh Kanwar, Advocate supported the impugned judgment of acquittal. 9. We have given our thoughtful consideration to the respective contentions of the parties and have carefully gone through the record. 10. 8. On the other hand Shri N.K. Thakur, learned Senior Advocate duly assisted by Shri Umesh Kanwar, Advocate supported the impugned judgment of acquittal. 9. We have given our thoughtful consideration to the respective contentions of the parties and have carefully gone through the record. 10. On the re-analysis of the evidence, we find that there are no grounds to convert the acquittal into conviction for the reasons referred hereinafter. 11. On receiving the information, the Investigating Officer H.C. Nardev Singh stated to have associated two independent witnesses PW2 Pawan Kumar and Ram Krishan in the raiding party. PW2 Pawan Kumar did not support the case of the prosecution and Ram Krishan was not examined. Though the hostility of Pawan Kumar not supporting the prosecution is not enough to suspect the prosecution case but a close and cautious examination of the statements of the official witnesses is also necessitated. PW9 H.C. Nardev Singh is alleged to have used seal ‘N’ at the time of sampling which after its use was handed over to Ram Krishan the alleged independent witness. The perusal of seizure memo Ext. PW9/E reveals that there is an over writing qua the impression of seal used. It appears to have been overwritten ‘N’ over ‘A’. We also find similar over writing in another seizure memo qua seal impression with respect to 15 kg of poppy husk in memo Ext. PW9/I. 12. Further, sample of seals Ext. PW9/L does not contain the signatures of the independent witnesses over it, in whose presence these samples were taken by the investigating officer but are on its unwritten reverse side, though there was space in front where these were embossed. Further, the facsimile of the re-seal impression “A” is also not available on the NCB forms. 13. We also notice that as per prosecution story, two sample parcels were taken from 4.5 kg of poppy husk and two from the recovery made from cow-shed. But these sample parcels were not separately marked as to which of the sample parcel belong to which of the recovery. As per statement of MHC he had handed over two samples parcels to PW6 HHC Surnit Singh for its deposit in the laboratory vide RC 86/2003 along with sample of seals, FIR and seizure memo. Neither the RC nor its copy has been proved on record to substantiate this version. As per statement of MHC he had handed over two samples parcels to PW6 HHC Surnit Singh for its deposit in the laboratory vide RC 86/2003 along with sample of seals, FIR and seizure memo. Neither the RC nor its copy has been proved on record to substantiate this version. Thus, it is difficult to say which parcel was of which recovery. Further, the said samples were received in the laboratory on the same day as per receipt of the chemical examiner but there is only a lithographic impression certifying that the seals on the samples tallied with the specimen impression of seals separately sent. The RC against which this property was moved did not find light of the day that the sample parcels were also carried by the constable and were deposited in the laboratory along with sample seals. This lithographic impression appears to have been fixed in a mechanical manner. 14. We further find that the report of analysis in the instant case does not conform to the definition of “opium poppy”/”poppy straw” under the Act. 15. Section 2 (xviii) of the Act “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. As per Section (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 call be extracted and which the Central Government may, be notification in the Official Gazette, declare to be opium poppy for the purposes of this Act; 16. From the two definitions 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 with the definition, “opium poppy” means (a) all parts (except seeds) of the plant of the species of papaver somniferm-L or a plant of any other species of papaver from which the opium or any other phenanthrene alkaloid can be extracted and which the Central Government by notification in the Official Gazette has declared to be opium poppy for the purposes of this Act. 17. 17. In the instant case, only qualitative test was undertaken whereby the chemical examiner on the basis of the presence of meconic acid and morphine opined the sample to be that of “poppy husk”. This does not indicate that the stuff examined consists of the parts of either of the plant of species of papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government by notification in the Official Gazette, had declared it to be opium poppy for the purposes of this Act. If it is so, report of the chemical examiner Ext. PW7/A that the stuff contains the 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 accused which was analyzed by the chemical examiner was those of poppy straw, as held by the Coordinate Bench of this Court in Rajiv Kumar @ Guglu versusState of H.P. 2008 (1) Shim.LC168. 18. In addition, we also find that when the samples were sealed by the Investigating Officer with respect to the recovery of 4.5 kg poppy husk and the case property was taken into possession vide memo Ext. PW9/E. There is a mention that seal after its use was handed over to Ram Krishan and when the sample with respect to the recovery of 15 kg was effected, the seal is stated to have taken from Ram Krishan and then it was applied in the subsequent samples as well as on the remaining bulk. In that event, we feel that the statement of Ram Krishan was important one but instead of him only Pawan Kumar was examined, who resiled from his statement whereas Ram Krishan was left-examined. Therefore, we take adverse inference for not examining Ram Krishan an important witness in the instant case. 19. For the reasons aforesaid, we are of the considered view that there are no grounds for converting the acquittal of the accused into conviction. As such, the appeal merits dismissal and is accordingly dismissed. 20. Accused is discharged of his bail bonds entered upon by him at any time during the proceedings of this case.