IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.701 of 1996 Decided on: 11 .5.2010 State of H.P …..Appellant. VERSUS Mohan Lal. …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr.N.D.Sharma, Advocate. Deepak Gupta,Judge (Oral). This appeal by the State is directed against the judgement dated 18.7.1996 delivered by the Learned Additional Sessions Judge, Shimla in Sessions Trial No.7-S/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 18 of 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). 2. The prosecution story, in brief, is that on 16.6.1994, PW/5, Ripka Giachho alongwith Constable Dev Raj, Puran Dev, Purshotam Ram and Excise Inspector Jagdeep Sharma and Peon Moti Ram were present in village Sharka Dhar for conducting an excise raid. PW/5 received secret information that the accused Mohan Lal had cultivated poppy plants in his fields at village Shalan. He accordingly formed a raiding party and associated therewith Nargu Ram, Namberdar and Jia Lal, Patwari. They went to the Shalan village and raided the fields where allegedly the accused had cultivated the poppy plants. Photographs Ext.P/1 to P/4 were taken. 303 poppy plants were uprooted. Out of these, two samples of 20 plants each were drawn. Thereafter, the sample as well as the remaining poppy plants were sealed in three separate packets with Seal ‘H’. The poppy plants were deposited with the MHC and thereafter, one sample was sent to the Chemical Examiner who vide his report, Ext.PW5/D opined that the exhibits contain contents of opium. On the basis of this material, challan was filed against the accused. He was charged with having …3… committed the offence detailed here-in-above. He pleaded not guilty to the charges levelled against him and claimed trial. 3. The learned Trial Court acquitted the accused holding that the provisions of Sections 42 and 50 of the Act has not been complied with and also that it was not possible to hold that the plants had been actually planted by the accused. 4. As far as Section 42 of the Act is concerned, it has no applicability in the present case. No doubt, this is a case of prior information but Section 42 is not applicable since the recovery was made from the open field. As far as Section 50 of the Act is concerned, the same is also not at all applicable since this is not a case of personal search. 5. Having held so, it would be pertinent to mention here that PW/1 Nagru Ram, Lamberdar did not support the prosecution case and turned hostile. According to him, before he reached the spot, the police officials had already recovered some plants. Purva Nand (PW/2), the other witness also turned hostile. Sh.Jia Lal, Patwari appeared in the witness box as PW/7. According to him, 0-00-10 hectares of land was found under the …4… opium plants. He, in cross-examination, admitted that the land under Khasra No.1780 from which the opium plants were recovered was under the joint ownership and possession of many persons as per the entries reflected in the Khasra Girdawari. The prosecution led no evidence to show that the plants were in a field which was exclusively in the possession of the accused. In fact, the evidence of the prosecution itself shows that there were many persons recorded in possession of Khasra No.1780. Therefore, it cannot be said with certainty that the accused had planted the said plants. 6. Lastly, the Chemical Examiner in his report has only stated that he is of the opinion that exhibit contains contents of opium. Therefore, even if it be accepted that the plants were uprooted from the fields of the accused, then also report Ext. ‘PL’ is not sufficient to hold the 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 …5… may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.” 7. The question as to what is opium poppy was considered by a Division Bench of this Court in Rajiv Kumar 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.” 8 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 …6… can be extracted and which plant has been duly notified by the Central Government. 9. In the present case, the relevant portion of the Chemical Examiner reads as follows:- “(a) Macroscopic exam: Poppy heads with plants. Meconic Acid: Present Morphine: 0.3% I am of the opinion that the exhibit contains contents of opium.” 10. 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 any 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. 11. 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. 11th May, 2010 (Rajiv Sharma) (m) Judge …7…