IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.662 of 2002. Date of decision: 09.08.2011. State of Himachal Pradesh … … Appellant Versus Chhanu Ram … …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 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the Respondent: Ms.Kiranlata, Advocate. Per Dev Darshan Sud,J. The State challenges the acquittal of the respondent herein, who was arrayed for offences under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the `Act’). 2. The brief facts of the case are that on 7.1.2001 at around 5.00 P.M. in the evening the respondent is purported to have been caught with 10 Kg.700 grams of Poppyhusk at Madanpura, Tehsil Nalagarh, District Solan. The allegations are that he 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 was in conscious possession of this contraband. In order to prove its case, ten witnesses were examined by the prosecution. Adverting to the evidence of each one of them, the learned Court holds that conscious possession of the contraband by the respondent herein is not proved. The first witness examined was Ambal Khan who states that on 7.1.2001 he was in his house adjoining the road when he was called by the Investigating Officer and told by the police to sign some documents. They informed him that they were on patrolling duty. He states that at around 7.00 P.M. when he came to the spot there was one `boy’ with the investigating agency and no proceedings took place in his presence. He was declared hostile and was cross- examined at length. 3. PW-2 Noshad Ali also states that on 7.1.2001 at around 4.00/5.00 P.M. he was near his house and when he reached Madanpura, two police officials were present there and had told him that they had come there in connection with the investigation of a case of theft. They obtained his signatures on some documents and there was no other person present on the spot. Most important of all, he states that no contraband was recovered in his presence. He was declared hostile and was also cross-examined. We will be adverting to the veracity of the testimony of these witnesses at a later point of time. 3 4. The other set of witnesses consists of the police officials; namely, PW-3 LHC Amrik Singh who says that he was posted in Police Station, Nalagarh and on 7.1.2001 he alongwith ASI Muni Lal and HC Ranjit Singh was on patrolling duty at Madanpura at around 5.00 P.M. One person, who was coming from Nalagarh, was in possession of a bag. He tried to flee when he saw the police officials but was chased and caught. Two independent witnesses, namely, Ambal Khan PW-1 and Musand Khan were present on the spot. The respondent- accused, when apprehended, disclosed his name as Chhanu Ram. He was searched in the presence of independent witnesses. A polythene bag was being carried in a bag which was found in his possession containing 10 Kg.700 Grams Poppy husk was seized from him. He says that the Poppy husk was weighed and two samples of one Kg.each were taken out and were sealed in a parcel. The balance contraband was sealed in separate parcel with the impression `M’ and seal after use was handed over to PW-1 Ambal Khan. The weighing scale and weights etc. were brought by PW-3 LHC Amrik Singh. PW-4 HC Akhatar Ali only states that he was posted in Police Station, Nalagarh and on 9.1.2001 MHC Kamal Nain PW-6 handed over parcel etc. to him containing the contraband and he deposited the same in CTL Kandaghat etc. PW-7 Constable Ranjit Singh states that he was posted in Police Station, Nalagarh and on 7.1.2001 he alongwith PW-10 Muni Lal, PW-3 LHC Amrik Singh were on 4 patrolling duty at Madanpura. At around 5.00 P.M. one person came from Nalagarh side, whom he identified in the Court as the respondent. He was carrying a bag and when he saw the police party he tried to run away. He says that PW-1 Ambal Khan and Musand Khan were also present on the spot and when the respondent-accused was apprehended, he disclosed his name as Chhanu Ram. He was searched in the presence of independent witnesses. One polythene bag, which was carried in another bag, was found containing 10 Kg.700 Grams Poppy husk. He then states regarding sealing of the contraband etc. corroborating the statement of PW-3 Amrik Singh. The next witness with respect to seizure is PW-10 ASI Muni Lal. He also says that in 2001 he was posted as ASI in Police Station, Nalagarh and on 7.1.2001 he had gone to Madanpura in connection with investigating a theft case. He was accompanied by Ranjit Singh PW-7 and Amrik Singh PW-3. When they reached near a `Nalla’ near Madanpura one person came from the opposite direction and on seeing the police party he tried to run away. He was caught and on inquiry revealed his name to be Chhanu Ram. He says that this person was trembling with fear. He then states that he directed Constable Amrik Singh PW-3 to bring two independent witnesses and he brought PW-1 Ambal Khan and PW-2 Naushad from Madanpura. He searched the accused in the presence of the independent witnesses and 10 Kg.700 Grams Poppy husk was recovered from him. It is in the 5 background of this evidence that the question with respect to the guilt of the respondent was to be decided. 5. After analyzing the evidence of the witnesses the learned trial Court acquitted the accused. We have noticed that he has created confusion in the language of the judgment jumbling up the facts. 6. Learned Senior Additional Advocate General relying upon the decision of the Supreme Court in Ajmer Singh vs. State of Haryana, (2010)3 SCC 746 urges that the evidence of the police witnesses cannot be discarded. He submits that in Ajmer Singh’s case, the Supreme Court holds that there is no hard and fast rule or an established principle of law that the evidence of the police personnel cannot be relied upon. The Court holds:- “19. … … … … … … … …It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20. We cannot forget that it may not be possible to find independent witness at 6 all places, at ail times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 21. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses have rightly come to the conclusion that the appellant was arrested and charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.” (p-754) 7. Learned counsel urges that this principle is the reiteration of the principle laid down by the Supreme Court in Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217. There is no dispute with this proposition. What is required to be considered in this case is as to whether the evidence of PW-1 Ambal Khan and PW-2 Noshad demolishes the veracity of the version narrated by Constable Ranjit Singh PW-7, LHC Amrik Singh PW-3 and Muni Lal PW-10 who were members of the patrolling party and had intercepted the accused- respondent alongwith contraband and who have 7 corroborated each other on all material particulars. But we must note some discrepancies in the evidence. Whereas both PW-1 Ambal Khan and PW-2 Noshad state that they were called to the spot by the police official, however one of the witnesses, namely, PW-3 LHC Amrik Singh says that both Ambal Khan PW-1 and Noshad PW-2 were already present there on the spot. PW-7 Ranjit Singh states that PW-1 Ambal Khan and Musand Khan were present at the spot. Musand Khan has not been produced in evidence. PW-10 ASI Muni Lal says that Ambal Khan and PW-2 Nausad were called from their residence. If the testimony of PW-10 is to be accepted, it corroborates PW-1 Ambal Khan and PW-2 Noshad Ali. We also find from the record that Prem Singh has been given up as a prosecution witness. He was an important link in the chain. He was given up by the Public Prosecutor on 21.12.2001 by stating that he was won over by the accused. He was the witness from whom the weighing scales etc. had been procured. 8. Without entering into this controversy as to whether contradictions are of such a nature which go to the root of the case, we find that the conviction cannot be sustained for the reasons that the report of the Chemical Examiner Ex.PW-5/B is not in accordance with law. For taking this view we are fortified by Division Bench decision of this Court in Criminal Appeal No.79 of 2002, decided on June 3, 2011, State of 8 H.P. vs. 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 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 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) 2270), held that even though the term 9 ”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 “Poppy Straw”. 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). (at p. 960) 9. We find that the report is not in conformity with the dictum of this Court as laid down in case 10 supra, more especially in paragraph-9. We also note that there are contradictions with respect to the presence of the independent witnesses on the spot. We may note that even where the witnesses have turned hostile, there is no material which has been elicited from their cross-examination and that what is stated in the examination in chief, namely no seizure etc. has been made in the present case nor any investigation conducted, has been effaced. We, therefore, find no merit in this appeal which is accordingly rejected. (R.B. Misra) Judge August 09, 2011. (Dev Darshan Sud) (aks) Judge