IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 469 of 2001 Date of decision: 03.05.2011 __________________________________________________________ The State of H.P. .....Appellant. Vs. Pradeep Kumar alias Deepu .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: None. Justice V.K. Sharma, J (Oral) The State is in appeal against acquittal of the respondent (accused) for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') by the learned Sessions Judge, Mandi, H.P. vide judgment dated 19.05.2001. 2. Factual matrix as noticed by the learned trial Court is as under. 3. On 7.7.2000, PW-7 ASI Subhash Chand, Investigating Officer, Police Station Aut was present for patrol duty in the area of Aut bazaar along with PW-6 HC Ram Lal and other constables. When the policy party reached near a place known as Banjar turning, they saw that one person had tried to slip away on seeing the police party. The said person namely accused was stopped in the presence of PW-5 Gian Chand and one Bhagat Ram. The accused was found carrying a polythene bag which was smelling like opium. PW-7 ASI Subhash Chand recorded Ruka and sent it to the police station on which FIR was also registered by PW-9 Vidyadhar SHO. It is further in evidence that meanwhile the SHO PW-9 Vidyadhar came there who gave consent 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 memo to the accused in the presence of the witnesses as to whether he would like to be searched by a Gazetted Officer, Magistrate or from the SHO himself. The accused expressed his desire in writing to be searched by the SHO himself. On search of the bag of the accused, three packets of polythene were recovered which were weighed and on weighment these were found to be of 1 kg., 1 kg 300 grams and 1 kg and 700 grams. 20 grams opium was taken out of each packet and these were sealed at the spot and were taken in possession vide recovery memo which was also signed by the witnesses. PW-9 Vidyadhar prepared the map of the recovery of the place, gave grounds of arrest to the accused, recorded the statements of witnesses and handed the case property to MHC PW-2 Naresh Kumar. 4. It is further in evidence that a special report was prepared which was given to PW-8 Mohan Lal Constable who gave the same to Dy.S.P. Ravinder Singh Jamwal at his residence and the same was given to PW-1 Sher Singh Assistant Reader by the Dy.S.P. It is also in evidence that three parcels of samples were handed over to PW-2 MHC Naresh Kumar by Atma Ram PW-3 who deposited them in the office of the Chemical Examiner at Kandaghat and on completion of the investigation and receipt of the report of the Chemical Examiner (Ex. PB) the challan was prepared by the then SHO PW-4 SI Om Prakash who also filed the same in the Court. 5. On completion of investigation the accused was sent up to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 9 witnesses. 6. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein, he pleaded innocence and false implication. However, he did not lead any evidence in defence. 3 7. After hearing the parties, the learned trial Judge proceeded to acquit the accused. 8. We have heard the learned Senior Additional Advocate General for the appellant/State and gone through the records. 9. The gravamen of charge against the accused under Section 18 of the NDPS Act, was relating to contravention in relation to opium. Section 2 (iv) of the NDPS Act defines opium as under:- “(xv) “opium” means- (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;” 10. The samples of the alleged contraband recovered from the accused were analyzed vide report Ex. PB, operative part whereof is as under:- 1. Date of Receipt in the Laboratory Lab. No. 1526/1 10-7-2000 Lab No. 1526/2 10-7--2000 Lab No. 1526/3 10-7-2000 2. Net Weight of the sample as found in Laboratory. 19.1684 gms. 28.4814 gms. 24.0634 gms. 3. Date of Conducting the test. 30-8-2000 30-8-2000 30-8-2000 4. Result of Qualitative test. Test for meconic acid= Positive. Test for morphine= Positive. Positive. Positive. Positive. Positive. (b) General Observation of Chemist I am of the opinion that the three exhibits marked here as 1526/1, 1526/2 and 1526/3 contain contents of opium. 11. Thus, it is manifest that the contraband allegedly recovered from the accused was opined to “contain the contents of opium” as the tests for “meconic acid” and “morphine” were found to be “positive”. 12. In Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704, the Hon’ble Apex Court, has held as 4 under vide paras 12, 14 and 15:- “12. Sections 17, 18 and 21 of the NDPS Act are intended to operate in different circumstances. Section 17 prescribes the punishment inter alia for possession of “prepared opium”; Section 18 prescribes the punishment inter alia for possession of “opium” and Section 21 deals with the punishment inter alia for possession of “manufactured drugs”. Each one of these terms has been defined in the NDPS Act. “Opium” is defined in Section 2 (xv) as: “2.(xv) “opium” means- (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;” 14. There does not appear to be any acceptable evidence that the black substance found with the appellant was “coagulated juice of the opium poppy” and “any mixture, with or without any neutral material, of the coagulated juice of the opium poppy”. FSL has given its opinion that it is “opium as described in the NDPS Act”. That is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to “opium derivative” within the meaning of Section 2(xvi) (e). Clause (a) of Section 2(xi) defines the expression “manufactured drug” as: “2.(xvi) ‘manufactured drug’ means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) * * *” All “opium derivatives” fall within the expression 5 “manufactured drug” as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was “manufactured drug” within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of “manufactured drug”. 13. Relying upon the case of Amarsingh Ramjibhai Barot, supra, a Division Bench of this Court in Daulat Ram vs. State of Himachal Pradesh, 2007 (2) Shim.LC 282, has held as under, vide paras 8, 9 and 10 of the judgment:- “8. From a bare reading of the definition of opium, it is clear that “opium” means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine. 9. In the present case, report of the Chemical Examiner Ex.PR says that the samples were tested for meconic acid and morphine. Report does not say that the stuff was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent. 10. The Hon’ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704,has held that where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy but simply expresses the opinion that the stuff is opium, as defined in the Narcotic Drugs and Psychotropic Substances Act, such a report is not acceptable and not binding on the Court. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium 6 poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent.” 14. When CTL report Ex. PB is considered in the light of the law laid down by the Hon’ble Apex Court, as followed by this Court in the aforesaid judgments, it is abundantly clear that the conclusion arrived at thereunder simply goes to show that the samples of the contraband allegedly recovered from the convict tested positive for meconic acid and morphine and were found to contain contents of opium. However, the report is not in accordance with the definition of opium contained in Section 2 (xv) of the NDPS Act, as the same is absolutely silent about the presence of “the coagulated juice of the opium” and “percentage of morphine” and as such cannot be relied upon to fasten criminality against the accused for the offence for which he was charged. 15. In a similar case (Cr. Appeal No. 36 of 2001, State of Himachal Pradesh versus Dhian Singh, decided on 15.3.2011), we have taken the same view. 16. In view of the above, the appeal fails and is accordingly dismissed. 17. The appeal stands disposed of in the above terms. (R.B. Misra) Judge (V.K. Sharma) Judge May 3, 2011 (cr)