IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P(M) No. 593 of 2004 Date of decision: 15.10.2008 State of H.P. ... Appellant Versus Paramjeet Singh … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. R.M.Bisht , Deputy Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: None ____________________________________________________________ Deepak Gupta, J (Oral). This petition for leave to appeal is directed against the judgment dated 23.4.2004 passed by the learned Additional Sessions Judge, Sirmaur at Nahan in Sessions Trial No. 13-N/7 of 2003, whereby he has acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ( for short: the NDPS Act). 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the prosecution case is that on 12.6.2003, a police party headed by Gurdeep Singh was on patrolling duty in Gondpur village. The accused was seen coming from behind a shop and he was carrying a gunny bag on his shoulder. On seeing the police, he got perplexed and started to run away. On this the police became suspicious and apprehended the accused. Gunny bag of the accused was searched and 8kgs 200 grams poppy husk was recovered. Two samples containing 100 grams each were taken from the bulk of poppy husk and the same were sealed with seal mark “H” and one of the sample was sent to C.T.L.Kandaghat for analysis. The Chemical Examiner reported that the sample was of poppy husk. The accused was charged and was tried by the learned trial Court. The learned trial Court acquitted the accused mainly on the ground that the provisions of Section 50 of the NDPS Act were not complied with and, therefore, the search was illegal. He also found that the link evidence in the case was missing and held that the prosecution has failed to prove that the sample sent for analysis was the same which was allegedly recovered from the accused. 3 As far as Section 50 of the NDPS Act is concerned, in view of the latest decision of the apex Court, it is apparent that the provisions of this section are not applicable in the case of search of gunny bag. However, the accused is entitled to be acquitted on another ground. The main submission made by the learned counsel for the respondent was that the poppy husk recovered at the spot allegedly from the possession of the appellant cannot be said to be poppy within the meaning of the ‘N.D.P.S. Act’ as the report of the Chemical Examiner is incomplete and does not lead to the inference that what was recovered was opium poppy within the meaning of the Act. The learned counsel for the respondent has drawn our attention to the term ‘poppy straw’ used in Section 2(xviii), which reads as under: “(xviii) ”Poppy straw” means all parts (except the seeds) of the opium after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.” According to the decision of the Apex Court in Ajaib Singh versus. State of Punjab, 2000, CRI. L.J. 2270, 4 the term ‘poppy husk’ falls within term ‘poppy straw’ as defined in the Act. Thus, what was recovered from the possession of the appellant can be said to be poppy straw within the meaning of the definition given above. However, the mere use of the word ‘poppy straw’ does not lead to the inference that it was opium poppy within the meaning of the Act. The term ‘opium poppy’ as provided for in Section 2(xvii) reads as under:- “(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.” All these terms were duly interpreted by a Division of this Court in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247. In that case, the Division of Division of this Court had even felt the necessity of summoning the Chemical Examiner and after referring to the statement of the Chemical Examiner and his report, 5 the Division Bench had observed in Paras 8 and 9 of the judgment as under:- “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 along with the definition of opium poppy, means (a) all parts (excepts seeds) of the plant of the species of papaver somniferum-L and all parts (excepts seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted ad which the Central Government may by notification in the official gazette declare to the opium poppy for the purpose of Narcotic Drugs and Psychotropic Substances Act, 1985. 9. In the present case, as is clear from the statement to 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 spices of papaver somniferum-L or a plant of either the plant of the species of papaver somniferum-L or a 6 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 evidence to hold that the stuff recovered from the appellant, the sample of which was analyzed by the Chemical Examiner, was poppy straw.” The Division Bench while coming to the aforesaid view has relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot versus State of Gujarat, (2005) 7 SCC 550. From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered in Rajiv Kumar’s case supra, it is apparent that the prosecution must prove that the parts of the plant recovered belonged to the plant of the species of papaver somniferum-L or the plant of any other species of papaver from which opium or phenanthrene alkaloid can be 7 extracted and which plant has been duly notified by the Central Government. In the present case, the relevant portion of the Chemical Examiner reads as follows:- “(a) Qualitative Tests:- Test for meconic acid = Positive (b) Results of quantitative test for morphine = Positive. © General Observation of the chemist I am of the opinion that the exhibit contains the contents of poppy husk.” It is, therefore, clear that the Chemical Examiner only found that the tests for meconic acid and morphine were positive. The Chemical Examiner has not given any opinion as to whether the parts of the plant belonged to papaver somniferum-L or not. In this case, we are not inclined to call the expert and seek his opinion since the report is identical to the report in Rajiv Kumar’s case supra. There is no mention in the report of the Chemical Examiner as to whether he conducted any test to determine the species of the plant. As such, this report is not binding. 8 In view of the above discussion, we hold that the report submitted by the Chemical Examiner does not prove that the contents of the sample tested were that of poppy husk within the meaning of the Act and the respondent was not liable to be convicted. In view of the above discussion, we find no merit in this petition for leave to appeal which is accordingly rejected. ( Deepak Gupta ), J. October 15, 2008 ( V.K. Ahuja ), J. s.