HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 320 of 2003 Decided on: 6.12.2011 State of Himachal Pradesh ……… Appellant. Versus Dalip Kumar, son of Sh.Husan Chand, resident of Village Upperla Nangal, Police Station and Tehsil Nalagarh, District Solan, H.P. ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Ms.Archana Dutt, Advocate. Justice Deepak Gupta, J.(oral): This appeal by the State is directed against the judgment dated 24.4.2003, passed by the learned Sessions Judge, Solan, in Sessions Case No.6-S/7 of 2002, whereby he acquitted the accused of having committed the offence punishable under Section 15 of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. Briefly stated, the prosecution story is that on 27th April, 2002, a police party headed by PW-6 ASI Deva Nand was on patrolling duty at Dattowal. They were traveling in a jeep. At this stage, PW-6 ASI Deva Nand received secret information that the accused was engaged in the sale and purchase of poppy husk at his shop situated in village Uprala Nangal. PW-6 recorded the reasons of his belief __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Ext.PH and sent the same to the Deputy Superintendent of Police through PW-2 H.C. Ram Nath. Thereafter, he proceeded to the shop of the accused. Two independent witnesses, namely, PW-1 Baggu Ram and one Gurjeet Singh were associated in the raiding party. An option was given to the accused as to whether he wanted to give his personal search as well as the search of the shop to the police officials or a Magistrate or a Gazetted Officer. The accused allegedly stated that he was willing to be searched by the police officials themselves. Nothing was recovered on the personal search of the accused. Thereafter, search of the shop was done and during this search, a blue coloured jute bag was found under the bench in the shop. This bag contained some substance, which looked like poppy husk. Thereafter, scales were arranged and the poppy husk was found to be weighing 1.7 kg. Two samples of 100 grams each were taken and were sealed with seal impression ‘S’. The case property was taken into possession vide memo Ext.PC. One of the samples was sent for chemical analysis and vide report Ext.PK, the sample was opined to be containing the contents of poppy husk. 3. We need not go into other aspects of the matter since the main question raised by Ms.Archana Dutt, learned counsel for the respondent-accused, is that substance found in the possession of the accused cannot be said to be poppy within the meaning of the Act as the report of the Chemical Examiner is incomplete, which does not lead to the inference that what was recovered was opium poppy within the meaning of the Act. - 3 - 4. Learned counsel for the respondent-accused has drawn our attention to the definition of the term ‘poppy straw’ 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.” 5. According to the decision of the Apex Court in Ajaib Singh Vs. State of Punjab, 2000 CRI. L.J. 2270, 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 defined 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.” 6. All these terms were duly interpreted by a Division of this Court in Rajiv Kumar alias Guglu Vs. 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 - 4 - statement of the Chemical Examiner and his report, the Division Bench had observed 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 Alongwith 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 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.” - 5 - 7. 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 Supreme Court Cases 550. 8. 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 extracted and which plant has been duly notified by the Central Government. 9. In the present case, the relevant portion of the Chemical Examiner reads as follows:- “A) Qualitative Test. Test for meconic acid = Positive. B) Result of Qualitative test. Test for morphine = Positive C) Gen. observation of chemist. I am of the opinion that the exhibit contains the contents of poppy husk.” 10. 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 - 6 - whether he conducted any test to determine the species of the plant. As such, this report is not binding. 11. 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 accused was not liable to be convicted. Once we have held that the report of the Chemical Examiner was not sufficient to prove that the contents were not of poppy husk, we are not inclined to refer to the other pleas raised that the independent witnesses had not supported the prosecution story. 12. 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. December 6, 2011 (V.K. Ahuja), (tilak) Judge.