IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 631 of 1996. Decided on: 22.04.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Sapattar Singh. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the appellant : Mr. Vivek Thakur, Additional Advocate General. For the respondent : Mr. Dharamvir Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 28.06.1996, delivered by the learned Additional Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.17-N/7 of 1995 acquitting the accused of having committed an offence punishable under Section 15 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The prosecution case, in brief, is that on 21.09.1994, Sub-Inspector Mahant Ram PW-8 alongwith Head 1 Whether the reporters of the local papers may be allowed to see the judgment?Yes. Constable Chaman Lal and certain other Police officials, was on patrolling duty near Bus Stand, Paonta Sahib. Accused was present at the Bus Stand. He was having a bag and a card-board box with him. On seeing the Police, he tried to run away. The Police Officials caught hold of him. The consent of accused was obtained for his search vide memo Ex.-PK. The accused thereafter stated that he should be searched in the presence of the Deputy Superintendent of Police vide Ex.-PH. Thereafter, he was taken to the house of Deputy Superintendent of Police, Paonta Sahib. Puran Chand PW-2 was called to the house of Deputy Superintendent of Police, Paonta Sahib alongwith scale and weights and after search of the accused, 5 packets of poppy husk weighing 1 Kg. each were recovered from the Card-board box and 6 packets of poppy husk weighing 1 kg. each were recovered from the bag. From the packets recovered from the bag, 200 grams of poppy husk was separated and from the packets of the cardboard box also, 200 grams of poppy husk was separated for chemical analysis. These packets were weighed by PW-2 Puran Chand, shopkeeper using his scale and weights. The recovered poppy husk and the sample packets were sealed with seal impression ‘T’ and taken into possession vide memo Ex.–PA. The seal was handed over to Rustam Ali PW-1. After completion of investigation, Rukka was sent to the Police Station, on the basis of which, F.I.R. Ex.-PE was recorded. The accused was arrested after completion of all the codal formalities. PW-8 Mahant Ram deposited the sample packets and bulk case property with M.H.C. at Police Station, Paonta Sahib. The samples were sent to the Chemical Examiner and report Ex.-PO was obtained, according to which, the sample was of Poppy straw. Therefore, the accused was challaned for having committed the offence aforesaid. 3. The learned trial Court acquitted the accused, mainly on the ground that the prosecution had failed to prove the recovery of the poppy straw itself. PW-1 Rustam Ali, who is an independent witness turned hostile and stated that the accused was never apprehended in his presence. He admitted his signatures on the notice of arrest and the recovery memo, but according to him, these signatures were obtained at the Police Station. Though he was cross-examined in detail, his version in the Court is that nothing was recovered in his presence. Similarly, PW-2 Puran Chand also did not totally support the prosecution version. According to him, he was called to the house of the Deputy Superintendent of Police, Paonta Sahib with scale and weights. When he reached the house of the Deputy Superintendent of Police, the packets had already been opened and two samples of 200 grams each from the bag and the card-board box were separated and sealed with seal impression ‘T”. He admitted in cross-examination that his shop is situated just in front of Police Station, Paonta Sahib, whereas the house of the Deputy Superintendent of Police is near the Court building. He also admitted that there are a number of shops near the house of the Deputy Superintendent of Police. According to him, he had gone to the house of the Deputy Superintendent of Police at 5 A.M. and all the persons had already gathered there. He admitted that he also appeared as a witness in another case. 4. PW-3 Shri Devinder Thakur was the Deputy Superintendent of Police at the relevant time. According to him, at about 4:45 A.M. PW-8 Mahant Ram alongwith witnesses Rustam Ali PW-1 and Dila Ram PW-6 came to his house alongwith accused. Thereafter, the accused was searched and the contraband was recovered from him. 5. PW-6 Dila Ram, the other independent witness of the prosecution was also declared hostile and he did not support the prosecution version. 6. The learned trial Court acquitted the accused on the ground that even if the statements of the hostile witnesses are totally discarded and not taken into consideration, in a case where the independent witnesses have turned hostile, the statements of the official witnesses must be scrutinized with greater care and caution. However, if the statements of PW-1 Rustam Ali and PW-6 Dila Ram are taken into consideration, it appears that the accused was not apprehended at the spot and the poppy husk was not recovered from his possession. PW-2 Puran Chand stated that he went to the house of Deputy Superintendent of Police on 21.9.1994 with scale and weights. This witness was associated with two cases of recovery of poppy husk on the same date, i.e., 21.9.1994. One case related to Bant Singh who was apprehended at about 7:00-8:00 A.M. In that case, Puran Chand deposed that he went to the house of the Deputy Superintendent of Police, Paonta Sahib for the first time only at 8:30 A.M. This witness has not clearly stated whether he went to the house of Deputy Superintendent of Police once or twice. In fact, in Bant Singh’s case he went to the house of Deputy Superintendent of Police at 8:30 A.M., but in the present case he stated that he went to the house of the Dy. S.P. at 5 A.M. The statement in Bant Singh’s case has been exhibited as Ex.-DB, which totally shatters the statement of this witness. 7. Even if the story of recovery is accepted to be correct, there is no evidence linking the report of the analyst with the seized contraband. According to PW-8 Mahant Ram, he deposited the case property with the MHC at Police Station Paonta Sahib. The M.H.C. has not been produced in the Court. The Malkhana register has also not been produced in the Court. The person who took the samples of packets from the Malkhana to the Chemical Examiner, has also not been examined in the Court. Therefore, the report cannot be linked with the seized substance. Under the Narcotic Drugs and Psychotropic Substances Act, 1985, the prosecution must prove that after the contraband was seized, it was kept sealed in such a manner that nobody could tamper with the property. It also must prove the entire chain to show that the sample was kept in the custody of a particular official and was not tampered with during this period. This, the prosecution has miserably failed to do in the present case. 8. Lastly, the report of the Chemical Examiner cannot be used to hold that the substance which was recovered was poppy straw within the meaning of the Act. According to the report Ex.-PO, in the sample analysed by the Chemical Examiner, meconic acid was present and, therefore, the Examiner was of the opinion that the exhibit contains contents of Poppy straw. 9. 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. 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.” 10. Therefore, it cannot be held that the substance was poppy straw within the meaning of the Narcotic Drugs and Psychotropic Substances Act as the report does not state that the plant was of the species of Papaver somniferum L. 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 (Rajiv Sharma) Judge April 22, 2010. (bhupender)