1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 269 of 2007. Reserved on:12-9-2008. Date of Decision: 3-10-2007. ____________________________________________________________ Rajesh Kumar. Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Ms. Kamlesh Shandil, Advocate. For the respondent: : Mr. J.S.Guleria, Law Officer. __________________________________________________ Surinder Singh, J . The appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to under-go rigorous imprisonment for a period of five years and to pay a fine of rupees 40,000/-, in default of payment of fine to further under-go imprisonment for a period of one year allegedly found in his possession 18 kg and 500 grams of poppy husk. In brief, the prosecution story is that on 11-1-2004, PW9 Sub Inspector Balbir Singh along with PW3 Head Constable Ranjit Singh and PW4 Constable Rajesh Kumar were on patrol duty and at about 3.30 P.M. laid a Naka near a place known as “Jagat Khana”. The appellant was coming from Rajpura side carrying a gunny bag on his head. On seeing the Police Naka Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 party, he tried to escape but the police officials overpowered him. PW1 Surinder Singh and PW2 Gurnam Singh also came on the spot in the mean time and they were also associated in the investigation of the case. The appellant was asked in their presence as to what was contained in his gunny bag. Appellant replied that it was floor but the Police conducted the search of the gunny bag and it found to contain nineteen polythene packets containing “poppy husk”. The scale of weights and measures were arranged from the near-by shop of one Arjun Singh. On weighing, eighteen polythene packets were of one kg each and 19th packet was found having contained 500 grams of ‘poppy-husk’, thus the total ‘poppy-husk’ was 18.500 kgms recovered from the gunny bag in possession of the appellant. As per the case of the prosecution, the entire ‘poppy-husk’ was put in the gunny bag and two samples each weighing 250 grams were drawn from the recovered stuff which was sealed in two separate parcels with seal impression which produced the English letter ‘H’ and the remaining bulk was also seamed in the same gunny bag and the seal impression was taken separately on a piece of cloth Exhibit PA. The case property was taken into possession vide memo Exhibit PB. A Ruka Exhibit PD was prepared and sent for the registration of the case to Police Station, Nalagarh through PW4 Constable Rajesh Kumar on the basis of which F.I.R. Exhibit PW6/A was formally registered by PW6 Sohan Lal, Additional S.H.O. PW9Balbir Singh S.I. prepared the NCB Forms in triplicate one of which is Exhibit PW6/E. He also prepared the site plan Exhibit PW9/A. The appellant was 3 arrested and he was informed about the grounds of arrest. The case property and the appellant was produced before additional S.H.O. PW6 Sohan Lal on the same day at 7.20 P.M. The case property was re-sealed by him with seal impression ‘T’. To this effect, he prepared the memo Exhibit PW6/C. The case property along with the sample of seal and connected documents were deposited with PW7 MHC Kamal Nain. On 12-1-2004, one sample parcel along with NCB Form and the specimen seal impression was sent through PW4 Constable Rajesh Kumar vide R.C. No. 7 of 2004 to CTL Kandaghat. On the same day, special report Exhibit-PE was also sent to the Superintendent of Police, Solan through PW4 Rajesh Kumar. After receipt of the report of the Chemical Examiner Exhibit PW8/A and on completing the challan, case was presented against the appellant in the Court for his trial under the aforesaid Section. The appellant was chare-sheeted. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charge. The statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure. He pleaded his innocence and denied the circumstances which were found attendant upon him. The appellant did not lead any evidence in defense. At the end of the trial, learned Additional Sessions Judge, Solan found him guilty and thus convicted and sentenced the appellant as aforesaid. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. 4 At the very out-set, I would like to say that the independent witnesses, namely, PW1 Surinder Singh and PW2 Gurnam Singh did not support the case of the prosecution and turned hostile, even they could not tell that the jute bag Exhibit P2 was the same which was alleged to have been recovered from the appellant and according to Gurnam Singh, his signatures were obtained by the Police in the shop on a blank paper in this case. In so far as the Police witnesses are concerned, according to PW9 S.I. Balbir Singh, when they were on patrol duty and put a Naka at the place known as Jagat Khana, the appellant was found coming with gunny bag on his back, on seeing the Police, he tried to escape but Police over-powered him. PW9, aforesaid, associated the independent witnesses, and ‘poppy-husk’ as stated above was recovered from the gunny bag and its samples were taken. He fully supported the case of the prosecution. His version is also supported by his officials PW3 Ranjit Singh and PW4 Rajesh Kumar. According to Ranjit Singh in cross-examination, it took four hours to complete the proceedings on the spot and PW4 Rajesh Kumar has stated that after the recovery, he came to the Police Station with a ruka at about 5.00 P.M.. PW6 S.I. Sohan Lal has stated that the ruka was received in the Police Station and he made the endorsement Exhibit PW6/A and lodged the First Information Report. Thereafter, he returned the file to Constable Rajesh Kumar. According to S.I. Balbir Singh, the case property and the accused were produced before PW6 Sohan Lal who was the 5 Officer superior to him which fact was admitted by Sohan Lal (PW6). Further according to him, the case property was deposited along with the documents with PW7 MHC Kamal Nain and Kamal Nain sent one of the sample vide E.C. 7/2004 along with the NCB Form and the seal impression to C.T.L. Kandaghat which was received on 12.1.2004 in the laboratory. The seals were found intact which corresponded to the sample of seals sent separately. The following tests were conducted in the laboratory as per Exhibit PW8/A :- “A) Test for morphine acid : Positive. B) Test for morphine: Positive. C) General observations: I am of the opinion that (of the chemical analyst) the exhibit contains the contents of poppy husk”. In Rajiv Kumar alias Guglu –v- State of H.P. 2008 (1) Shim. LC 168, the Division Bench of this Court, in which I was also one of the member, had the occasion to examine the report of a similar nature issued by the same Laboratory. In that case, we felt that these two tests were not enough to come to the conclusion that the sample stuff was ‘poppy-husk’ or “poppy straw”, because the aforesaid tests were indicative of only this fact that the straw had traces of meconic acid and morphine. Therefore, the Chemical Examiner of the said laboratory was summoned and examined as a court witness. In that case, the Chemical Examiner had made a statement that the two tests conducted by him were that the straw was either of the plant of species of papaver somniferum-L or a plant of any other species 6 of papaver from which opium or phenanthrene alkaloid can be extracted or a mixture of plants of the species of papaver somniferum-L and any other plant of papaver species yielding opium or any phenanthrene alkaloid. He admitted that the tests conducted by him did not specifically indicate whether the straw was of a plant of 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 for the purpose of Clause (b) of Section 2 (xvii) of the Act. He further admitted that the straw could have been of a plant of papaver species yielding opium or any other phenanthrene alkaloid and which (plant) may not have been even notified by the Central Government for the purpose of Clause (b) of Section 2 (xvii) of the Act. Even he had gone to the extent to say that there was no equipment available in his laboratory for conducting any botanical tests to determine the species of a plant by examining the straw. He also admitted that there was no expert available in his laboratory to give definite opinion about the species of the plant by analyzing/testing the straw supplied to him. Thus, against the aforesaid background, the Division Bench came to the conclusion that from the aforesaid evidence, there is no evidence on record that the substance that was allegedly recovered from the appellant was poppy straw within the meaning of Section 2 (xviii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 7 In Rajiv Kumar alias Guglu‘s case above, the Division Bench of this Court took note of the definition of “poppy straw” given under Section 2 (xviii) of the Act which reads as follows :- “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 there from. 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, declared to be opium poppy for the purposes of this Act”. When read along with the definition of “opium-poppy” it 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 8 official gazette declare to be opium poppy for the purposes of this Act. Thus, against the aforesaid background, the two tests conducted by the Chemical Examiner 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 Act. On the strength of the above judgment of the Division Bench of this Court, the report of Chemical Examiner Exhibit PW8/A cannot be used as enough evidence to hold the stuff recovered from the appellant, the sample of which was analysed by the Chemical Examiner as poppy straw. In view of the aforesaid facts and the law discussed above, I hold that the substance allegedly recovered from the appellant could not be proved to be poppy straw within the meaning of the Act. Therefore, the conviction and sentence passed by learned Additional Sessions Judge under Section 15 (b) of the Act could not be sustained. Consequently, the appeal is accepted and the impugned judgment of conviction and sentence is set-aside and the appellant is acquitted. The appellant being in jail serving out the sentence awarded to him be set at liberty forthwith if not required in any other case. 9 Cr.M.P. No. 260 of 2008. No order in view of disposal of the main appeal. The application is disposed off. (Surinder Singh) Judge. October 3rd , 2008. (bm)