IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 292 of 2002 Date of Decision : 23.9.2011 ________________________________________________________ State of H.P. ….Appellant Versus Lakhvinder Singh ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General For the Respondent: Mr. Chaman Negi, Advocate, vice Mr. Anup Chitkara, Advocate. ____________________________________________________________ R.B. Misra, J(oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, against the judgment dated 24.12.2001 passed by the learned Additional Sessions Judge, Sirmour District at Nahan in Sessions case No. 3-N/7 of 2001, acquitting the accused/respondent for offences under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 short called ND&PS Act) in reference to FIR No. 91/ 2001 dated 2.3.2001. 2. The prosecution case in brief is that ASI Shyam Lal accompanied with H.C. Som Dutt, C. Ranev Singh, C. Anil Kumar and two independent witnesses namely Satish Kumar and Devender Singh was present near Gurudwara Paonta Sahib in connection with traffic about 7.50 P.M., on 2.3.2001 when a scooter bearing registration No. HP-17- 4370 being driven by accused came from the side of Paonta Sahib Bazar. It was intercepted and the accused was asked to produce the documents of the scooter. When the accused opened the dickey to take out the papers, the police party noticed a polythene packet contained therein, from which poppy husk of 1 kg 200 grams was recovered. Two samples each weighing 100 grams were taken out and put into a separate parcels of clothes and sealed with seal impression “S”. Remaining contraband good was kept in the same packet. The scooter was taken into possession and rukka was sent to the police station Paonta Sahib, on the basis of which FIR was lodged. On completion of investigation, the accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as 10 witnesses, whereas in his 3 statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case. 4. Two independent witnesses namely Devender Singh (PW1) and Satish Kumar(PW2) in whose presence the said contraband good was recovered have not supported the prosecution case at all. The abovementioned two independent witnesses have denied even the search and recovery of the contraband good. Anil Kumar (PW3) and Jeet Ram (PW4) accompanying the investigating team, have stated that sealing and sampling took place in presence of two independent witnesses namely Devender Singh and Satish Kumar. H.C. Som Dutt (PW5) did not testify even the presence of Devender Singh on the spot. From the testimony of PW5 nothing could be inferred that Devender Singh was also accompanying the investigating team at the relevant time. As such the testimonies of PW3 and PW4 in the absence of any support from the statements of independent witnesses also become doubtful. The record reveals that the scooter in question was not belonging to the accused/respondent as the same was owned by one Vijay Singh resident of House No. 138, Ward No.5, Paonta Sahib. If the scooter was not belonging to the accused/respondent and the recovery was effected from the scooter, in such a 4 situation it cannot be said that the recovery of contraband good in question would be said to be effected from the exclusive and conscious possession of accused/respondent as the scooter from which the contraband good was recovered was not actually belonging to the accused/respondent. Replying on the decision of this Court in 2008(1) Shim. L.C. 168 (Rajiv Kumar alias Guglu v. State of H. P.), this Court subsequently on 3.6.2011 while disposing of the Criminal Appeal No. 79 of 2002 ( State of H. P. versus Sucha Singh and another) has observed in the relevant paragraphs as under: “6. Section 2(xviii), defines “poppy straw” which 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. 7. From the definition of “Poppy Straw” reproduced hereinabove, it is clear that to understand the meaning of “Poppy Straw”, it is essential to refer to the meaning of “Opium Poppy”. The “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 5 may by notification in the official Gazetted declare to be opium poppy for the purposes of this Act. 8. Further the Apex Court in Ajaib Singh v. State of Punjab [ 2000 Cri.L.J. (SC) 2270 ], held that even though the term “Poppy Husk” has not been defined in the Act, but the term “Poppy Straw” has been defined. The term “Poppy Straw” includes all parts (except the seeds) of “Opium Poppy”. “Opium Poppy” means the plant of the species papaver. Thus, except for the seed all other parts of the plant of the species Papaver would fall within the term “Poppy Straw”. 9. In the present case, it is clear from the report of analysis referred to above that three tests were conducted by the Chemical Examiner to ascertain whether the stuff contained meconic acid and morphine and also by physical appearance, do not indicate that the stuff examined consisted of the parts of either the plaint 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. Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls within the definition of “PoppyStraw”. 10. In this behalf, we derive the strength of the judgment of Amar Singh Ramjibhai Barot v. State of Gujarat [ (2005) 7 SCC 550] which has also been relied upon by the Division Bench of this Court in Rajiv Kumar alias Guglu v. State of H.P. [ 2008(1) Shim.L.C. 168 ].” 5. In view of the aforesaid analysis having made by this Court earlier in disposing of the criminal appeal Sucha Singh & another (supra), the chemical examination report also could not said to have proved that the contraband good recovered was a poppy husk as such, conviction and sentence cannot be awarded against the accused. 6 6. On the analysis of the evidence and materials on record, learned Additional Sessions Judge had rightly arrived at the findings that the prosecution has not able to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt of the accused. Accordingly criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged. (R.B. Misra) Judge September 23, 2011 (Dev Darshan Sud), (jai) Judge