Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No.1026 of 2008 IN Criminal Appeal No.536 of 2008 Date of decision: July 9, 2009. State of H.P. ….Appellant. Versus Paramjeet Kaur and Ors. … Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the appellant : Mr. R.K.Bawa, Advocate General with Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondent : None. Surinder Singh, Judge (oral): Cr.M.P.(M) No.1026 of 2008. The respondents were tried and acquitted for the offence punishable under Sections 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985; in short ‘The Act’. The State has sought the leave to file appeal. In short, the prosecution story is that during the intervening night of 6th/7th January, 2007 PW10 ASI Manohar Lal was heading the police party. They had put a naqa at Thana Chowk adjacent to the Police Station Joginder Nagar at about 1.30 A.M. A vehicle Tata Sumo bearing registration No. HR-29G-0851 arrived there, which was stopped for checking. The respondent Sarabjeet Singh was - 2 - driving the said vehicle. Other respondents were its passengers. The police conducted the search of the vehicle and found it loaded with 12 bags of Poppy Straw out of which 8 bags were containing 25 Kgs each and 4 bags each were having 20 Kgs of ‘Poppy Straw’. Thus total recovered quantity was 280 Kgs. ASI Manohar Lal aforesaid separated two samples of one kilogram each out of the recovered substance and sealed each of the sample parcel with seal impression ‘H’ and the remaining ‘Poppy Straw’ was also sealed with the same seal. The NCB forms were filled up and the facsimile of the seal was fixed there upon. The case property was taken into possession vide recovery memo. A ruqa was sent for registration of the FIR. The respondents were arrested and case property was produced before the SI/SHO PW9 Kapoor Chand who resealed it with seal impression “K”. Thereafter the case property was deposited in the Malkhana and one sample parcel was sent to FSL Junga for its examination. After completion of the challan, it was presented in the court for the trial of the respondents. The respondents were charge-sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove its case. The respondents were also examined under Sections 313 Cr.P.C. They denied the circumstances appearing against them. When called upon to enter into their defence, the respondent also examined Shri A.K. Wasuja, Chemical Examiner, who issued the chemical examination report Ex.PX. At the end of the trial, the respondents were acquitted, on the grounds that there were contradictions in the statements of the - 3 - witnesses with respect to the alleged place of recovery, non- inclusion of the independent witnesses to inspire confidence and also that the substance allegedly recovered from the accused persons was not ‘Poppy Straw’ within the meaning of Section 2(xviii) of the Act while relying upon the judgment of the Division Bench of this Court, passed in Rajiv Kumar alias Guglu v. State of H.P., the learned trial court acquitted the respondents. We have examined the impugned judgment of acquittal, the challenge of which is sought to be made by the State. The learned trial court took note of the contradictions appearing in the statements of prosecution witnesses with respect to the place of recovery. The initial case as set up by the prosecution is that the alleged recovery was made at Thana Chowk, which is at a distance of 100-150 mtrs from Joginder Nagar Police Station. But PW1 Nand Lal stated that the recovery was made at Joginder Nagar Chowk. PW2 stated that Joginder Nagar Chowk is 1 K.M. from the Police Station. Even SI Kapoor Chand (PW9) and the Investigating Officer Manohar Lal (PW10) both stated that Thana Chowk is in front of the police station. Joginder Nagar Chowk is about 300 mtrs from Thana Chowk from where the alleged recovery was made. These statements are entirely inconsistent and contradictory, which renders the prosecution case a suspect. The next contradiction, which was noted by the learned trial court is that the police constable PW1 Nand Lal is alleged to have gone on foot along with another constable Vijay Kumar to the shop of PW2 Amar Nath to bring the weight and scale, but PW2 aforesaid stated that they had come in the Tata Sumo Jeep and took the weight and scale along with them. - 4 - Further according to the prosecution, the respondents had made disclosure statement under Section 27 of the Evidence Act Ex.PW3/A pursuant to which, they had identified the place of occurrence from where the alleged contraband was loaded in the vehicle on 7.1.2007, whereas the statement Ex.PW1/A and its memo Ex.PW1/B were prepared on 8.1.2007 i.e. after the remand of the accused to the police custody. Thus, the said documents are contradictory and irrconcible. It is also important to note that the aforesaid disclosure statement does not fall strictly within the ambit of Section 27 of the Evidence Act, as these are with respect to the pointing out of the place from where the alleged contraband was loaded, which is hit by Section 162 of the Code of Criminal Procedure and is no assistance to the prosecution. Before the respondents could be held guilty of the offences charged, it is incumbent upon the prosecution to prove that the stuff recovered is contraband within the meaning of the Act. The definition of ‘Poppy Straw’ and ‘Opium Poppy’ given in the Act, need to be noticed. The same is reproduced as under:- “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 - 5 - notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.” In Rajiv Kumar alias Gugly v. State of H.P. [Latest HLJ 2008 (HP) 247], the Division Bench of this court, of which one of us (Surinder Singh, J) was a member took note of the above definition and observed that the poppy straw, when read along with 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 declared to be opium poppy for the purposes of the Act. In the case in hand, the result of the examination as extracted in the judgment of the learned trial court does not indicate that the stuff examined consisted of the all other 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 declared to be opium poppy for the purposes of the Act. This being so, the report of the chemical examiner (Ex.PX) that the sample is that of poppy straw cannot be said to be enough evidence in absence of any other material on record to hold that it fell within the definition of “poppy straw” or “opium poppy”. Therefore, in view of the above, the report of the Chemical Examiner Ex.PX is not binding upon the Court as it fell short of the requisite particulars as discussed above. Thus, the findings arrived at by the learned trial court are just and proper, therefore, the leave to appeal is refused. - 6 - Cr.A No.536 of 2008. In view of the refusal of the leave to appeal, the appeal stands dismissed. (Deepak Gupta) Judge (Surinder Singh) Judge July 9, 2009. *Pds*