1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 133 of 2009 Decided on September 14, 2011 _____________________________________________________ State of H.P. …Appellant. Versus Indu alias Amarjeet Kaur ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General For the respondent: None. Justice Dev Darshan Sud,J. The state is aggrieved by the judgment of acquittal passed by the learned Special Judge, Una, in Sessions Case No. 22 of 2004 on 16.10.2008, acquitting the respondent herein, for offences punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). 2. The case against the respondent was that on 18.9.2002 around 3.15 a.m. at night ASI Vishwas Kumar (PW.9) alongwith HHC Karnail Singh (PW.8), HHC Mehar 2 Singh and other police personnel, were at Nakka (checking) at Jhalera village. During nakka bus No. HP-53-0623 of HRTC was stopped for checking. Mehar Singh and Karnail Singh went inside the bus and they found the respondent sitting on seat No.35 with two bags under the seat and one bag by her side which was locked. She was asked to open the bag but she hesitated. Consent memo for conducting search was prepared and the bags were taken out of the bus and were checked in the presence of the bus driver Om Prakash and conductor Des Raj (PW.4). The locked bag was opened and was found to contain 5 black and 5 green paper bags containing poppy husk which on weighing was found to be 14 kg. 500 grams. In the second black bag, 6 green and 2 black paper bags were recovered containing poppy husk which on weighing was found to be 13 kg.250 grams and from the third bag 3 black and 3 green bags of polythene containing 8 kg. 750 grams poppy husk were recovered. Two samples of 100 grams each were separated from the contraband contained in each of the bags and were sealed with seal 'A' in separate parcels. The remaining poppy husk was resealed in the bags with seal impression 'A'. The investigating officer filled-in NCB form in triplicate and affixed the seal impressions on the said form. The seal after use was entrusted to Kamal Dev (who 3 was not produced in evidence). The accused was asked that how and under what circumstances she was transporting poppy husk and whether she was authorized to do so, but no satisfactory answer was given by her. The evidence of the prosecution consisted of Sh.Dharam Chand (PW.2), who corroborated the prosecution story. Sh. Des Raj (PW.4) conductor of the bus has stated that the bus was stopped at Jhalera and he stepped out of the bus. He was declared hostile as he did not support the case of recovery but only admitted his signature on the memo Ex.PW.4/B which is a consent memo under Section 50 of the 'NDPS Act' and Ex.PW.4/C recovery memo. 3. We need to examine the evidence of Sh.D.K.Sharma (PW.10) as it is his evidence, which assumes importance for the purpose of adjudication of this appeal. He states that he was posted as Chemical Examiner at CTL Kandaghat since 1992 and has been conducting tests on narcotic substances since 1997. According to him, report Ex.PF, which is the analysis of the contraband, is in his hand and bears his signature. Three parcels of the sample duly sealed with the seals intact were received by him and tallied with the specimen, impression of seals which were sent separately, were tested by him. All the three samples were of poppy husk containing opium which was detected by the 4 presence of meconic acid and morphine. In cross- examination he says that “ I have already appeared in the High Court of Himachal Pradesy regarding similar case involving poppy husk it is correct that in the Hon'ble High Court I have stated that there is no equipment available in the laboratory for conducting any botanical tests to determine the species of a plant by examining the straw. It is correct that in Ex.PF I have not mentioned that any botanical test was conducted by me. It is correct that without conducting botanical test I have stated that it is a species of pap aver somniferum. It is correct that as I have not conducted botanical test and hence I cannot say to which species of opium poppy the busk relates. Self stated that the two test conducted by me, were sufficient to conclude that it is husk of opium poppy. I had not mentioned the process/procedure of test conducted by me in the report Ex.PF.” This evidence is destructive to the entire prosecution case. We need not deal with the other aspect any more. We find that the report (Ex.PF) cannot be treated as authentic to prove that the respondent in fact possessed contraband / narcotic substance. 4. For taking this view we are fortified by a Division Bench decision of this Court in Criminal Appeal No.79 of 5 2002, decided on June 3, 2011, State of H.P. versus Sucha Singh and another, 2011 (2) Him. L.R. (DB) 958, by one of us (Hon'ble R.B. Misra, J):- “5. The above position apart, we also find that the prosecution has failed to prove that the recovered stuff fall within the definition of “Poppy Straw”. 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 purpose of this Act. 7. From the definition of 'Poppy Straw” reproduced hereinabove, it is clear that to understand the meaning of “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 declared 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) 2279), 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”. 6 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 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. Therefore, the report aforesaid cannot be used as a sufficient evidence to hold that the stuff recovered from the respondents falls withing the definition of “Poppy Straw”. 10. In this behalf, we derive the strength of the judgment of Amar Singh Rajibhai 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). (at p. 960)” 5. A similar view has been taken by this Court in Rajiv Kumar alias Guglu versus State of H.P. (2008) 1 Shim.L.C. 168:- “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 7 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 Exmainer, 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. 10. In this view of the matter, we derive strength from a judgment of the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 Supreme Court Cases 550. Facts of that case were that some black substance, looking like opium, was recovered from the accused. A sample of the substance was sent to the Chemical Examiner, who reported that the sample was “opium as described in the Narcotic Drugs and Psychotropic Substances Act, 1985 containing 2.8 per cent anhydride morphine and also pieces of poppy flowers (posedoda)”. The Hon'ble Supreme Court noticed that the definition of opium as given in Section 2(xv) of the Narcotic Drugs and Psychotropic Substances Act, 1985, according to which, “opium” means (a) the coagulated juice of 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. The Hon'ble Supreme Court held that there did not appear any acceptable evidence that the black 8 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” and that the opinion given by the FSL that it was opium, as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, was not binding on the Court.” (Para 15 at pages 554 & 555) 6. In view of the law laid down by this Court and the fact that Sh.D.K.Sharma (PW.10) himself admits that he did not conduct the requisite test, we find that learned Sessions Judge has rightly acquitted the respondent. Thus, we do not find any merit in the present criminal appeal, accordingly the same is dismissed. 7. Bail bonds furnished by the respondent are discharged. (R.B. Misra) Judge September 14, 2011 (Dev Darshan Sud) (Purohit) Judge