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2013 DIGILAW 550 (HP)

Harbhajan Singh v. State Of Himachal Pradesh

2013-06-17

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Accused-appellants, hereinafter referred to as the accused, have assailed the judgment dated 9.12.2005, passed by learned Additional Sessions Judge, Una, District Una, H.P., in Sessions Trial No. 14 of 2004, whereby they have been convicted of the offence under the provisions of Section 15-61 /85 of the Narcotic Psychotropic Substances Act, 1985 (in short 'NDPS Act'), in reference to FIR No. 297 of 2003 dated 19.5.2003. The prosecution case, in brief, is that on 19.5.2013, the police party apprehended the accused and recovered 5 kilograms of poppy husk from their possession. Two samples of 200 grams each were taken out from the recovered stuff and sealed with seal impression 'S'. Remaining bulk was also sealed with the same seal. On 21.5.2003, one sealed sample parcel of poppy husk along with 'NCB forms' and specimen seal were sent for chemical examination. Keeping in view the Chemical Examiner's report and the investigation, accused were charged for the aforesaid offence. 2. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses. Whereas, the accused through their statements u/s 313 of the Code of Criminal Procedure have denied the prosecution case. 3. On analysis of the prosecution witnesses and material on record, learned Additional Sessions Judge, Una, has arrived at the finding that the prosecution has proved its case beyond reasonable doubt. Trial Court convicted both the accused and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- each and in default of payment of fine to further undergo simple imprisonment for two years each. 4. Inter alia on many other grounds, one important aspect which requires consideration is that on perusal of Ex. PK, it appears that 'NCB Form' was not filled in, on the spot. The Chemical Examiner has opined that on Chemical Examination 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 poppy husk. 5. In similar facts and circumstances, this Court (DB) has taken a view vide judgment dated 02.11.2007 passed in Cr. Appeal No. 295 of 2004 (Rajiv Kumar alias Guglu Versus State of H.P.) that the Chemical examination could not prove that the contraband goods recovered as poppy straw. The relevant paragraph of the aforesaid judgment is reproduced as below:- 8. 5. In similar facts and circumstances, this Court (DB) has taken a view vide judgment dated 02.11.2007 passed in Cr. Appeal No. 295 of 2004 (Rajiv Kumar alias Guglu Versus State of H.P.) that the Chemical examination could not prove that the contraband goods recovered as poppy straw. The relevant paragraph of the aforesaid judgment is reproduced as below:- 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 (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 Narcotic Drugs and Psychotropic Substances Act, 1985. 9. In the present case, as is clear from the statement of 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 on 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 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. 10. In this view of the matter, we derive strength from a judgment of the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat, AIR 2005 SC 4248 . Facts of that case were that some black substances, looking like opium, was recovered from the accused. 10. In this view of the matter, we derive strength from a judgment of the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat, AIR 2005 SC 4248 . Facts of that case were that some black substances, looking like opium, was recovered from the accused. A sample of the substance was sent to the Chemical Examiner, who reported that the sample was "opium as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, containing 2.8 per cent anhydride morphine and also pieces of poppy flowers (posedoda)". The Hon'ble Supreme Court noticed the definition of opium as given Section 2(xv) of the Narcotic Drugs and Psychotropic Substances Act, 1985, according to which, "opium" means (a) the coagulated juice of 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 per cent of morphine. The Hon'ble Supreme Court held that there did not appear any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy" and "any mixture, with or without any neutral material of the coagulated juice of the opium poppy" and that the opinion given by the FSL that it was opium, as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, was not binding on the Court. 6. Similar view has been taken by a Division Bench of this Court in the judgment dated 3rd June, 2011, passed in Cr. Appeal No. 79 of 2002 (State of H.P. versus Sucha Singh and another), the relevant paragraphs are extracted as below:- 6. Section 2(xviii), defines "poppy straw" which 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(xviii), "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. The definition of "Poppy Straw" reproduced hereinabove, it is clear that to understand the meaning of "Poppy Straw", it is essential to refer to the meaning of "Opium Poppy". 7. The definition of "Poppy Straw" reproduced hereinabove, it is clear that to understand the meaning of "Poppy Straw", it is essential to refer to the meaning of "Opium Poppy". The "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 this Act. 8. Further the Apex Court in Ajaib Singh Vs. State of Punjab, AIR 2000 SC 3374 , held that even though the term "Poppy Husk" has not been defined in the Act, but the term "Poppy Straw" has been defined. The term "Poppy Straw" includes all parts (except the seeds) of "Opium Poppy". "Opium Poppy" means the plant of the species papaver. Thus, except for the seed all other parts of the plant of the species papaver would fall within the term "Papaver Straw". 9. In the present case, it is clear from the report of analysis referred to above that three tests were conducted by the Chemical Examiner to ascertain whether the stuff contained meconic acid and morphine and also by physical appearances, 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. Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls within the definition of "Poppy Straw". As such, the accused persons were accordingly acquitted. 7. In the present case also, Ex. Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls within the definition of "Poppy Straw". As such, the accused persons were accordingly acquitted. 7. In the present case also, Ex. PN 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 poppy husk, whereas, in view of the observations made in Rajiv Kumar alias Guglu (supra), 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 Narcotic Drugs and Psychotropic Substances Act, 1985. 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 accused, the sample of which was analyzed by the Chemical Examiner, was poppy straw. 8. There is no other legal evidence to substantiate the prosecution case about the stuff being poppy husk. Thus, keeping in view the report of the Chemical Examiner, I am of the considered view that the prosecution has failed to bring home the guilt to the accused. 9. Thus, on this short ground alone, the present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused are acquitted of the charged offence. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. However, it stands clarified that the order with regard to recovery of currency notes of Rs. 70,000/-, which the accused denied having been recovered from them, shall remain as it is. Appeal stands disposed of, so also the pending application(s), if any.