IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 697 of 1996 Date of decision: 11.05.2010 State of H.P. …. Appellant Vs. Ramesh Dutt and others ... Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 For the appellant-State: Mr. Vivek Singh Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Dy. Advocate General For the respondents: Mr. Naresh Thakur, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgment dated 12th December, 1995 delivered by the learned Sessions Judge, Chamba in Sessions case No. 6 of 1994, whereby the accused have been acquitted of having committed an offence punishable under Section 18 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”). 2. The prosecution story, in brief, is that on 24.05.1993, at about 6.30 AM, PW-13 ASI Om Parkash was present in Madhuwar alongwith PW-9 ASI Nikka Ram and other 1 Whether the reporters of the local papers may be allowed to see the Judgment. 2 police constables. There, he met to PW-10 Shukar Din and one Alla Bakash. He proceeded towards Village Deora. On the way, he received secret information that opium poppy plants had been cultivated in the fields of accused Ramesh Dutt. Thereafter, PW-13 alongwith other police officials and two independent witnesses proceeded to the house of Ramesh Dutt and informed him that they had received an information that he cultivated opium poppy plants in his fields. According to prosecution, the accused led the police party to these fields where the opium poppy plants had been cultivated. There were 3350 opium poppy plants, some of which had developed poppy heads. Out of these, 10 plants were separately taken as sample and sealed with seal ‘OP’. The remaining opium poppy plants were destroyed on the spot itself on the same day. PW-13 prepared the rough sketch map Ext. ‘PK’. He then prepared ‘Ruka’ and sent it to the police station through constable Kartar Singh. Thereafter, he got the land demarcated from the patwari and obtained Tatima, Ext. PA and Jabamabandi, Ext. PB. He conducted further investigation. The sample plants were sent to the chemical examiner at Kandaghat for examination and vide report Ext. PG, it was opined that the samples contained contents of opium. On the basis of this material accused Ramesh Dutt was charged with having committed an offence as aforesaid. 3. PW-1 Meer Chand is the real brother of Ramesh Dutt. He was cited as a prosecution witness. While appearing in 3 Court, he stated that the land is jointly owned by him and his two other brothers, namely, Ramesh Dutt, Hari Dutt and the children of his sister. According to him, this land was jointly cultivated by the three brothers only. 4. Thereafter, the statement of this witness was deferred and the learned Public Prosecutor sought to implead Meer Chand and Hari Dutt as accused on the basis of this statement. Vide order dated 20.9.1994, Meer Chand and Hari Dutt were also arrayed as accused on the basis of the statement made by Meer Chand PW-1. With due respect to the learned Sessions Judge, the procedure followed by him is totally illegal. A person who should not have been arrayed on an accused was being cited as prosecution witness, without informing him that the statement which he is making may be used against him. Even, the manner in which two brothers were impleaded as accused shows total non-application of mind. The witness had even not identified the land which he and his brothers owned. Even Khasra numbers of the land were not mentioned. All that this witness had stated was that he and his two brothers and children of his sister are the owners of the land which was being cultivated by three brothers. There was not a word in the statement of this witness to link the opium poppy with this land. Without there being such material on record, Meer Chand and Hari Dutt could not have been impleaded as co-accused. 4 5. The learned Sessions Judge in his order dated 20.9.1994 has observed as follows: “It would appear from the statement that opium poppy plants in dispute were cultivated jointly by three brothers”. 6. Meer Chand had not stated about any opium poppy and we fail to understand how the learned Sessions Judge came to the aforesaid conclusion. 7. Coming to the case against Ramesh Dutt the first thing which the prosecution was bound to prove was the identity of the land. No doubt, PW-13 has stated that the fields, in question, were identified by accused Ramesh Dutt. In this regard, he was not supported by PW-10 Shuker Din who turned hostile. The other independent witness was not examined and none of the other official witnesses were examined with regard to this aspect of the case. PW-13, in cross examination, admitted that when he first went to the field on 24.5.1993, no patwari and Kanungo were accompanying him. Admittedly, the opium poppy plants were uprooted on 24.5.1993. He could not name the owner of cultivating fields. He admitted that he could not give the Khasra numbers or the khata khatauni of the fields from which the opium poppy plants were uprooted. 8. We are dealing here with a case of prior information. In such a case the police officials should have sought the assistance of revenue authorities before conducting the raid itself or they should have clearly identified the land by 5 other method such as photography and video-graphy. This was not done. 9. There is also great delay in taking the patwari to the spot. PW-13 uprooted the plants on 24.5.1993 PW-2, patwari concerned was taken to identify the land after one month on 23.6.1993. PW-2 clearly states that he prepared site plan Ext. ‘PA’ on the basis of the identification of the land given to him by the police officials. It was not the accused who pointed out the land to him. Since the fields have not been properly identified, it cannot be said that the opium plants were uprooted from the fields belonging to the accused 10. Even if it be accepted that the plants were uprooted from the fields of the accused, then also report Ext. ‘PG’ is not sufficient to hold other accused guilty. Opium poppy has been defined in Section 2 ( xvii) of the Act as under:- “(xvii)” opium poppy” means- (a) The plant of the species papaver somniferum-L; and (b) The plaint 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.” 11. The question as to what is opium poppy was considered by a Division Bench of this Court in Rajiv Kumar 6 alias Guglu Vs. State of H.P., Latest HLJ 2008(HP) 247, wherein this Court held as follows: “In the present case, as is clear from the statement to 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 part of either the plant of the spices of papaver somniferum-L or a plant 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.” 12. From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered in Rajiv Kumar’s case supra, it is apparent that the prosecution must prove that the part of the plant recovered belonged to the plant of the species of papaver somniferum-L or the plant of any other species of papaver from which opium or phenanthrene alkaloid can be extracted and which plant has been duly notified by the Central Government. 13. In the present case, the relevant portion of the Chemical Examiner reads as follows:- “(a) Qualitative Tests:- Test for meconic acid=Positive’ (b) Results of quantitative test for 7 morphine=Postive. (c) General Observation of the chemist I am of the opinion that the exhibit contains the contents of poppy husk.” 14. It is, therefore, clear that the Chemical Examiner only found that the tests for meconic acid and morphine were positive. The Chemical Examiner has not given by opinion as to whether the parts of the plant belonged to papaver somniferum- L or not. There is no mention in the report of the Chemical Examiner as to whether he conducted any test to determine the species of the plant. As such, this report is not sufficient to hold the accused guilty. 15. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge (Rajiv Sharma) Judge May 11, 2010 *brb*