IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 492 of 1996 Date of decision: 6.4.2010 State of H.P. …. Appellant. Vs. Preetpal Singh ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Anup Chitkara, Advocate Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 20.3.1996 of the learned Additional District Judge, Sirmaur District at Nahan, in NDPS case No.13-N/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the Act). Briefly stated the prosecution case is that on 26.7.1994 PW-7 ASI Sucha Nand, who was then posted at Police Station Paonta Sahib was on patrolling duty with head-constables Dharam Pal Singh and Paramjeet Singh and two constables, one of whom constable Arjun Singh has been examined as PW-3. When the patrolling party was near the bus stand, PW-7 received secret information that one man was carrying poppy husk. He, therefore, formed a raiding party and joined two independent witnesses PW-1 Darshan Lal and Nathi Ram (not examined). The 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 patrolling party apprehended the accused near Vishwa Karma Chowk. On inquiry the person disclosed his name to be Preetpal Singh. An option of search was given to him. He opted to be searched before the Dy.S.P and according to the prosecution after recording the statement he was taken to the office of PW-8 Devinder Singh, Dy.S.P, in whose presence search of the accused was conducted. On search of the bag which the accused was carrying poppy husk kept in a plastic packet was recovered. Scales and weights were called through PW-2 Rakesh Kumar and the poppy husk was weighed which was found to be 2 kg.300 gms. Sample of 300 grams of poppy husk was drawn and the remaining poppy husk as well as the sample poppy husk were sealed in two separate parcels with seal bearing seal impression ‘M’. Thereafter, the same was taken into possession vide recovery memo Ext.PB. Sample seal impression Ext.PC was obtained on a piece of cloth and Rukka Ext.PF was sent to the Police Station for recording F.I.R alongwith case property including the sample packet. Site plan was prepared and special report Ext.PF/1 was sent to the office of Dy.S.P. Paonta Sahib. After completing the other codal formalities the sample was sent to the Chemical Examiner. After Chemical Examiner’s report Ext.PM was received according to which the sample was found to be that of poppy husk. Thereafter challan was filed and accused was tried for the offence mentioned here-in-above. The accused has been acquitted. Hence the present appeal. 3 We have heard Shri Vivek Singh Thakur, learned Additional Advocate General for the State and Shri Anup Chitkara, learned counsel for the accused. As far as the search is concerned, the relevant evidence is of PW-1 Darshan Lal, independent witness PW-2 Rakesh Kumar, who brought the scales, PW-3 Arjun Singh, who was one of the constables accompanying the patrolling party, PW-7 Sucha Nand, the Investigating Officer and PW-8 Devidner Singh, in whose presence the search was conducted. PW-1 Darshan Lal stated that the accused was apprehended in his presence near Vishwa Karma Chowk. The accused refused to give his search to the police party and stated that he should be searched only by Dy.S.P. Paonta Sahib. Thereafter the accused was taken to the office of the Dy.S.P. Paonta Sahib, where PW-2 Rakesh Kumar was called with his balance and weights from the Bazar. On search of the bag of the accused 2 Kg. and 300 grams of poppy husk was recovered. Sample of 300 grams was drawn. This witness also talks about sample seal impression being made and the seal being handed over to the witness but does not remember to whom it was given. The learned trial Court discarded the evidence of the witness mainly on the ground that he is a stock witness and had admitted in cross-examination that he had appeared for the prosecution as a witness in different courts in about 40-50 cases of illicit distillation. 4 The search in question had taken place on the basis of prior information. It had taken place in the middle of Paonta town. There was no dearth of respectable persons who could be associated with the search. In such circumstances associating a stock witness who had appeared for the prosecution in as many as 40 cases itself casts a doubt on the prosecution version. However, this does not mean that the evidence has to be totally ignored but only means that it must be scanned with greater care and caution. In such a case, the contradictions in the statements of the witnesses can be magnified and assume greater importance in favour of the accused. The second witness to the search was Shri Nathi Ram, who is not examined. The other witnesses examined is PW-2 Rakesh Kumar, who brought the scales and weights to the office of the Dy. S.P. Paonta Sahib. He in his examination-in-chief has supported the prosecution version. He admitted in cross-examination that the seal after its use was not handed over to any person in his presence. He also admitted that the bag containing the remaining two kilograms of poppy husk was neither wrapped nor sealed at the spot. According to him no chit was affixed on the packets in his presence but was only affixed on the parcel in which these packets were put. This witness admits that there are many other shops, offices and canteen near the office of Dy. S.P. He also admits that he supplies ration to the mess of the Police Station at Paonta Sahib. Both the witnesses who have been examined in 5 Court have a direct link with the police. One is a stock witness and the other is a supplier of ration to the police mess. In such circumstances to rely on their evidence would be extremely dangerous. There is major contradiction as to where the search took place. According to the prosecution witnesses i.e. PW-1, PW-2, PW-3 and PW-7 the search took place in the office of the Dy. S.P but the Dy. S.P. who appeared as PW-8 stated that the search took place at his residence. Even if for the sake of argument it is accepted that the search had taken place in the manner described by the witnesses and some contraband was recovered there is another flaw in the prosecution case. According to PW-7 ASI Sucha Nand and PW-8 Devinder Singh the case property i.e. the bulk poppy husk and the sample of poppy husk were sealed in two separate parcels bearing seal ‘M’. However, PW-2 did not support this version of the prosecution. According to PW-7 he sent the case property alongwith Rukka Ext.PF but is silent through whom he sent the same. PW-3 Arjun Singh states that the Rukka and case property was sent through him and he handed over the case property to the MHC Police Station Paonta Sahib. The evidence of MHC Sunder Singh had been taken on record by means of affidavit, Ext.PH, in which he stated on oath that on 26.7.1994 ASI Sucha Nand (PW-7) deposited with him the two sealed parcels said to contain poppy straw. This is a major contradiction. According to 6 the MHC Sunder Singh the poppy straw was deposited by PW-7 whereas PW-7 states that he had sent the case property to the police station through some person and PW-3 states that it was he who carried the case property and deposited it with the MHC. Surprisingly, the Malkhana Register has not been produced on record. This would have been the best evidence to show who brought the parcel and got the case property deposited in the Malkhana. Surprisingly, in the affidavit Ext.PH there is not even an averment that when the property remained in the possession of the MHC it was in his custody and could not be tampered with. According to the affidavit Ext.PH on 6.8.1994 i.e. 11 days after the deposit of the case property he sent one sealed parcel said to contain 300 grams of poppy straw with sample seal to Chemical Examiner, Kandaghat vide R.C. No. 76/94 through constable Rajinder Singh. The evidence of Rajinder Singh was recorded on the basis of affidavit Ext.PK in which he only states that he took the sample parcel on 6.8.1994 from the police station to the Chemical Examiner at Kandaghat. He is totally silent about any seal impression being carried by him. The R.C. which would have shown what was the material sent through this witness has not been proved on record. Therefore, the evidence which would link the report of the Chemical Examiner with the recovered contraband is totally missing. 7 Lastly the report of the Chemical Examiner itself does not show that any offence has been committed by the accused. According to the report Ext.PM in the sample sent Meconic Acid was present and therefore the examiner was of the opinion that the exhibit contains contents of Chura Post. A Division Bench of this Court in Rajiv Kumar alias Guglu vs. Sate of H.P., Latest HLJ 2008 (HP) 247, held as follows:- “7. For appreciation of the argument of the learned counsel, definitions of “poppy straw” and “opium poppy” given in the Narcotic Drugs and Psychotropic Substances Act, 1985, need to be noticed. The same are reproduced here for ready reference. “Section 2(xviii), “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. Section 2(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.” 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 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 Narcotic Drugs and Psychotropic Substances Act, 1985. 8 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 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. 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.” In the present case also the report only shows that Meconic Acid was present. There is no finding that the seized substance belong to the species Papaver somniferum L. No other notification has been produced on record to show that the plant of other species from which opium can be extracted have been notified. Therefore, it was incumbent upon the examiner to have opined whether the plant belongs to Papaver somniferum L or not. In the absence of any such opinion the accused cannot be said to have committed any offence. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 6th April, 2010 (Sanjay Karol) ™ Judge.