JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973 has been preferred against the judgment dated 1.6.2006 passed by learned Special Judge, Una, District Una, Himachal Pradesh whereby he convicted and sentenced the appellant to undergo rigorous imprisonment for one year and a fine of Rs. 10,000/- and in default of fine, to further undergo six months simple imprisonment under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. 2. The story of the prosecution is that on 6.12.2003 at about 6.00 p.m. the appellant was going on a scooter in the area of Heera-Thara and the police party which was patrolling the area, signaled him to stop his vehicle as the police had prior information that he was carrying some narcotic contraband. After conducting the search of the scooter, 5 Kg poppy husk was found in the front dickey of the scooter. After completion of the other procedural formalities as contemplated under the Act, the appellant was ultimately sent for trial, which ended into conviction, as aforesaid, giving rise to the instant appeal. 3. The learned senior counsel for the appellant has vehemently argued that the learned Special Judge could not have convicted the appellant that too, on the basis of the statement of the police officials especially when the independent witnesses associated in the case had not supported the prosecution story. He further argued that the learned Court below has ignored the important vital missing links in the case especially with regard to the seals having not been deposited in the Malkhana by the Investigating Officer as admitted by PW-6 H.C. Ved Parkash. That apart, even the alleged contraband after sealing was not presented to the SHO for re-sealing purpose. Lastly, it is argued that there was no material whatsoever available on the record to prove that the recovered substance in fact is poppy husk and on this ground alone the judgment in question cannot be sustained. I have heard learned counsel for the parties and have gone through the records of the case carefully. 4. Lastly, it is argued that there was no material whatsoever available on the record to prove that the recovered substance in fact is poppy husk and on this ground alone the judgment in question cannot be sustained. I have heard learned counsel for the parties and have gone through the records of the case carefully. 4. It cannot be disputed that in case the substance recovered from the appellant is not proved to be poppy husk, then the conviction and sentence as awarded by the learned Court below cannot be sustained in the eyes of law and therefore in such circumstances, the other contentions raised need not be gone into. 5. Sh. N.K. Thakur, Senior Advocate, learned counsel for the appellant has vehemently argued that in terms of the law laid down by this Court in Rajiv Kumar @ Guglu v. State of Himachal Pradesh 2008 (1) Shim. L.C. 168, the only qualitative test and quantitative tests were 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 therefore cannot be held to "opium poppy". 6. Now, in case the report of the Chemical Examiner H.P.C.T.L. Kandaghat is adverted to, the same would reveal that two tests were conducted in the laboratory, one was for meconic acid and other for morphine and both were found positive. On these findings, the chemical examiner was of the opinion that exhibit contains the contents of "poppy husk". 7. Identical question came up for consideration in Hardev Singh v. State of Himachal Pradesh, 2013 (1) Him.L.R. 513 wherein a learned Single Judge relying on Rajiv Kumar's case (supra) held as under: "8, "Poppy Husk" has not been defined under the Act, whereas Section 2 (xviii) of the Act 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. 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 by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act. 9. To understand the meaning of "poppy straw" it is essential to refer to the meaning of "opium poppy" and "poppy straw" as stated above. 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. 10 In the instant case, only qualitative and quantative tests were undertaken and 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.PO 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 persons which was analyzed by the chemical examiner was that of "poppy straw", as held by the Division Bench of this Court in Rajiv Kumar @ Guglu v. State of Himachal Pradesh 2008 (1) Shim. L.C. 168." 8. Same is the position in the instant case and, therefore, I find no difficulty in concluding that the prosecution has failed to prove the alleged recovery falling within the definition of either of "Opium Poppy" or "Poppy Straw". Consequently, the appellant stands acquitted and the bail bonds entered upon by him is hereby discharged. The fine amount, if any deposited, be refunded to him. Send down the records. 9. In the result, the appeal is allowed.