IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 18 of 2000 Date of Decision : September 16, 2010 State of H.P. …Appellant v. Bhag Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. For the respondent: Mr. Himmat Negi, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 11.10.1998 delivered by the learned Sessions Judge, Una, in Sessions trial No. 29 of 1998, whereby he acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act’). 2. The prosecution story in brief is that on 21.8.1998 Sh. Bimal Gupta, Dy SP, Una (PW-12) received secret information that accused Bhag Singh is possessing some contraband substance. PW-12 noted this information in writing, sent a report 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 about the same to the superior officer and thereafter formed a raiding party in which some independent witnesses i.e. Chanan Singh, Tarsem Singh and Sucha Singh were associated. The raiding party proceeded to village Pubowal Majra Baliwal, where the accused was found present at his shop. The accused was given option whether he wanted his house and shop to be searched in the presence of a Magistrate or a gazetted officer or is ready to be searched by the police. On search of the house nothing was recovered. However, when the shop was searched large number of polythene envelopes were recovered from the almirah. These envelopes contained poppy husk and the total weight of the poppy husk was found to be 19 kgs. 300 gms.. Two samples were taken and the remaining poppy husk was sealed. 3. Thereafter the raiding party headed by PW-12 went to an old house existing nearby the house allegedly belonging to the accused. In this house, 9 gunny bags containing poppy husk were found. These had been hidden under a heap of wheat chaff. Two samples were drawn out of one of the gunny bags and thereafter all the gunny bags were weighed and were found to be 3 quintals, 72 kgs. and 700 gms of poppy husk. Therefore, the total quantity of poppy husk recovered was 3 qtls. 92 kgs.. The accused was arrested and after completion of codal formalities the FIR was lodged. The samples were sent for chemical analysis and on receipt of the report (Ext.PK) of the Chemical Examiner, it was opined that four samples sent 3 to C.T.L. Kandaghat were of poppy husk. On receipt of the report the challan was filed against the accused who was tried for having committed an offence punishable under Section 15 of the Act. He was acquitted. Hence the present appeal. 4. The main grounds which weighed with the trial Court for acquitting the accused were that all the independent witnesses had turned hostile, out of the police witnesses only PW-12 and PW-1 Constable Nanak Chand were examined and despite the fact that other independent witnesses had turned hostile no attempt was made to examine the other police officials present including an officer of the rank of Inspector. 5. Another ground which weighed with the trial Court was that the samples had only been taken from one packet and one gunny bag and there was nothing to link the other gunny bags and other remaining packets with the report and it was not clear that what was the weight of the poppy husk in the packets and gunny bags from which the samples were taken. 6. We are of the considered opinion that merely because the independent witnesses turned hostile the accused cannot be acquitted. However, in a case like the present one where the raiding party consisting of as many as 12 police officials, when the independent witnesses turned hostile it was the duty of the prosecution to examine some other police officials also, and not merely the Investigating Officer. In such a situation only the examination of the Investigating Officer may not be sufficient. 4 7. Even assuming for the sake of arguments that the recovery had taken place as alleged by the Investigating Officer, it was for the prosecution to prove that the sampling was proper and also that the report was linked with the entire contraband which was sealed. According to PW-12 himself, about 20 to 30 polythene envelopes were recovered from the Almirah inside the shop. Two samples were drawn out of the only one polythene envelope which weighed about 500 grams. Similarly, 9 bags allegedly containing poppy husk were found hidden underneath the wheat chaff but only two samples were drawn from one of the gunny bags. The sampling was not proper. It was expected of the raiding party to make a representative sample of the whole which can be done in various manners. It was necessary to take samples from each and every packets and gunny bags and then mix up all the samples make them representative of all the sealed packets and then draw samples. Therefore, the sampling itself was not proper. 8. Lastly the report of the Chemical Examiner itself does not show that any offence has been committed by the accused. According to the report Ext.PK in the sample sent Meconic Acid was present and therefore the examiner was of the opinion that the exhibit contains contents of Poppy Husk. 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 5 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 6 evidence to hold that the stuff recovered from the appellant, the sample of which was analyzed by the Chemical Examiner, was poppy straw.” 10. In the present case also the report only shows that Meconic Acid was present. There is no finding that the seized substance belong to the species Papaver somniferum L. No other notification has been produced on record to show that the plant of other species from which opium can be extracted have been notified. Therefore, it was incumbent upon the examiner to have opined whether the plant belongs to Papaver somniferum or not. In the absence of any such opinion the accused cannot be said to have committed any offence. 11. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. September 16, 2010. (rana)