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Himachal Pradesh High Court · body

2012 DIGILAW 956 (HP)

State of Himachal Pradesh v. Gurmeet Singh

2012-12-11

R.B.MISRA, SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J (Oral): Respondent hereinafter referred to as ‘the accused was charge-sheeted, 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 5 kg of poppy straw in the bag on his scooter bearing registration No.PB-16-A 8447. The acquittal has been challenged by the State in the present appeal. 2. Heard and gone through the record. 3. In short, prosecution case, as emerges from the evidence on record, can be stated thus. On 24.6.2005 ASI Dharam Dass was heading a police patrol party and had put a naka at Dabhota Barrier for traffic checking. Around 6.30 p.m., scooter aforesaid came from Nalagarh side being driven by the accused. It was signaled to stop but the accused tried to escape, however, he was apprehended by the police party. Accused was carrying white coloured boru (bag) kept on the foot rest of the Scooter. It was searched in the presence of Chaman Lal and Dinesh Jain witnesses. The boru is found to have contained poppy straw (bhuki) of 5 kg without permit. Out of the recovered stuff, two samples of 200 grams each were separated for chemical analysis. Each of the sample parcels were sealed with seal impression ‘A’. NCB forms in triplicate were also filled in on the spot. Facsimile of the seal was taken on a piece of cloth Ext. PW1/C. Seal after its use were handed over to witness Chaman Lal. Case property along with scooter in question was taken into possession vide recovery memo Ext. PW1/A. The spot map Ext. PW1/B of the place of the alleged incident was also prepared on the spot. Ruka was sent for the registration of the case on the basis of which present FIR has been registered. The accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/D. 4. Special report of search and seizure was sent to the official superior within the statutory period. Case property was deposited in the police station with PW6 MHC Kamal Nain on the same day by ASI Dharam Dass. 5. The accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/D. 4. Special report of search and seizure was sent to the official superior within the statutory period. Case property was deposited in the police station with PW6 MHC Kamal Nain on the same day by ASI Dharam Dass. 5. On 25.6.2005 one sample parcel marked as S1 which was also marked as P1 along with two samples of NCB forms, sample of seal, recovery memo and FIR was sent to CTL Kandaghat through HHC Basu Dev vide RC No. 69 of 2005. On its deposit, receipt was obtained on the back of the RC and it was handed over to MHC aforesaid. 6. On 29.6.2005, an application was also moved to the Additional Chief Judicial Magistrate, Nalagarh for certifying the seals on the bulk parcel and sample parcel. On the application, the Magistrate passed order Ext. PY. 7. On examination of the sample parcel in the Laboratory, it tested positive for meconic acid and morphine. On the basis of this result, the Examiner was of the opinion that the exhibit contained “poppy -husk”. 8. Police recorded the statements of the witnesses and after completing investigation, challan was presented in the court for the trial of the accused to which he pleaded not guilty and claimed trial. 9. 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. 10. When called upon to enter into his defence, no evidence in defence was examined. 11. At the end of the trial, accused was acquitted on the glaring contradictions appearing in the evidence and the identity of the case property. 12. At the very outset, we would like to say that ASI Dharam Dass was not examined despite various repeated opportunity accorded to the prosecution. However, PW8 Constable Ashwani Kumar supported the prosecution case with respect to the recovery and specifically stated that boru Ext. P2 in which Bhuki Ext.P3 was recovered and the sample parcel shown to him during the trial was identified as Ext.P1. There is missing link with respect to the deposit of the case property with MHC by not examining ASI Dharam Dass aforesaid. 13. P2 in which Bhuki Ext.P3 was recovered and the sample parcel shown to him during the trial was identified as Ext.P1. There is missing link with respect to the deposit of the case property with MHC by not examining ASI Dharam Dass aforesaid. 13. PW8 constable Ashwani Kumar did not say that sample parcel and the remaining bulk was marked as S1 and S2 but categorically stated that it was P1 and P2. But in the NCB forms Ext. PW1/B there is mention of S1 and S2 sample drawn from the recovered stuff. To cover up this discrepancy, PW6 HC Kamal Nain stated that it was also marked as S1 and S2. But unfortunately, he did not produce the copy of abstract of the malkhana register to substantiate this fact. Even when remaining bulk and one of the sample was produced before the ACJM on 29.6.2005, sample parcel was marked as P2 and remaining bulk as P3 which is contrary to the entry in the NCB forms. Therefore, it is not clear as to whether samples were sealed and marked as P1 and P2 or S1 or S2 as referred in the NCB forms aforesaid. Also we find that there were only three seals of seal impression ‘A’ on the sample parcel as is indicated in the NCB form aforesaid but when it was produced before the ACJM on 29.6.2006 it contained four seals instead of three and no explanation has been offered as to why one seal on the said parcel had increased. Therefore, on the basis of this, the learned trial Court rightly came to the conclusion that it cannot be said with certainty whether the sample which was sent for chemical examination was the same which was separated from the boru allegedly recovered from the accused because as per NCB forms, samples were marked as S1 and S2 and not P1 and P2. 14. We have also noticed that neither road certificate nor its copy has been produced or proved during the trial in the instant case which could have thrown light on the factual aspect of the case whether the sample was marked as S1 and S2 or P1 and P2 which was analyzed in this case. Therefore, identify of the sample examined is also in dispute. 15. Further we find that the report of analyst Ext. Therefore, identify of the sample examined is also in dispute. 15. Further we find that the report of analyst Ext. PZ whereby the chemical examiner has opined that it was the contents of poppy husk is also discrepant as it did not conform to the definition of “opium poppy”/ “poppy straw” under the Act. 16. 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. 17. 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. 18. 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. 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 versus State of H.P. 2008 (1) Shim. LC 168. 19. In addition, independent witnesses PW2 Dinesh Jain and PW3 Chaman Lal have not supported the case of the persecution and the I.O has not been examined in the instant case. 20. 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. 21. Accused is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 22. We record a word of appreciation to Ms. Soma Thakur, Advocate who has been appointed as the learned amicus curiae.