IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 483 of 2001 Date of decision: 03.05.2011 __________________________________________________________ State of H.P. .....Appellant. Vs. Ashwani Kumar & another. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Adv. Gen. For the respondents: Mr. N.K. Thakur, Advocate. Justice V.K. Sharma, J (Oral) The State is in appeal against acquittal of the respondents (accused) for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') by the learned Sessions Judge, Una, H.P. vide judgment dated 04.06.2001. 2. Factual matrix as noticed by the learned trial Court is as under. 3. On December 3, 2001 Constable Subhash Chand (PW-11) was present in civil clothes near Jogi Panga in connection with detection of crime. He got the secret information near old bus-stand Jogi Panga that the accused persons were coming on the road and they were carrying opium. 4. In the meanwhile, HC Hoshiar Singh (PW-5) and HC Kuldip Kumar (PW-10) along with other police officials, were also present at Jogi Panga for the detection of crime. At about 4.55 p.m. on that day C. Subhash Chand met them and made the statement Ext. PB u/s 154 Cr.P.C. HC Kuldip Kumar prepared the information report u/s 42 of the Act Ext. PA and sent it through C. Ranjit singh (PW-1) to the S.P. Una. Thereafter, statement Ext. PB was sent through Kulbhushan constable (PW-2) to Police Station, Bangana on the basis of which case was 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 registered vide formal FIR Ext. PC by Rachhpal Singh MHC (PW-3). 5. On the aforesaid information, the police party headed by HC Kuldip Kumar joined Raj Kumar (PW-6) and Iqbal Singh independent witnesses and proceeded towards old bus stand, Jogi Panga. They found both the accused persons carrying a bag jointly caught by them from its string on the main road near the gate of Jogi Panga. The accused persons were stopped by the police party and they disclosed their names as Ashwani Kumar and Ram Pal, both sons of one Jagdish Ram, resident of village Dobar. HC Kuldip Kumar informed that that they were suspected of having opium in their possession and their personal search as well as search of their bag was required to be conducted. For this purpose, they were given notice u/s 50 of the Act Ext. PE. They were informed by the police that it was their legal right to have the search conducted either before the police or before a Magistrate or gazetted officer. Both the accused persons agreed to the search to be conducted by the police itself. Accordingly, the police officials gave their personal search vide memo Ext. PG and thereafter personal search of the accused persons and their bag Ext. P1 was taken. Their personal search was conducted vide memos Ext. PL and PM. However, nothing incriminating was recovered from the same. But in the bag Ext. P1 carried by the accused persons, one big wallet Ext. P2 was recovered containing three smaller wallets Ext. P3 to P5. They were opened and weighed separately on the scale of Avtar Singh (PW-9). The wallet Ext. P3 contained 1 kg. opium while the wallets Ext. P4 and P5 contained 950 and 900 grams opium, respectively. Two samples each of 50 grams were separated from the wallets Ext. P3 to P5 and those separated parcels of sample as well as the remaining wallets Ext. P3 to P5 were sealed with seal B and taken in possession vide memo Ext.PH in the presence of witnesses. Specimen impressions of the seal were taken on Ext. PN and the seal was handed over to Raj Kumar (PW-6). 3 6. The chemical examination report Ext.PQ was received from the laboratory to the effect that the samples contained opium. 7. On completion of investigation the accused was sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 12 witnesses. 8. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein, they pleaded innocence and false implication. However, they did not lead any evidence in defence. 9. After hearing the parties, the learned trial Judge proceeded to acquit the accused. 10. We have heard the learned Senior Additional Advocate General for the appellant/State, learned counsel for the accused and gone through the records. 11. The gravamen of charge against the accused under Section 18 of the NDPS Act, was relating to contravention in relation to opium. Section 2 (iv) of the NDPS Act defines opium as under:- “(xv) “opium” means- (a) the coagulated juice of the 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;” 12. The samples of the alleged contraband recovered from the accused were analyzed vide report Ex. PD, operative part whereof is as under:- 1. Date of Receipt in the Laboratory Lab. No. 2882/1 5-12-2000 Lab. No. 2882/2 5-12-2000 Lab No. 2882/3 5-12-2000 2. Weight (New weight) found in Laboratory. 48.8004 gms. 46.6602 gms. 47.2257 gms. 3. Date of Conducting the test result of. 18-1-2001 18-1-2001 18-1-2001 4. Qualitative test. Test for meconic acid= Positive. Positive. Positive. 5. Result of quantitative test Test for morphine= Positive. Positive. Positive. General Observation of I am of the opinion that the three exhibits marked here 4 Chemicals as 2882/1, 2882/2 and 2882/3 contain contents of opium. 13. Thus, it is manifest that the contraband allegedly recovered from the accused was opined to “contain the contents of opium” as the tests for “meconic acid” and “morphine” were found to be “positive”. 14. In Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704, the Hon’ble Apex Court, has held as under vide paras 12, 14 and 15:- “12. Sections 17, 18 and 21 of the NDPS Act are intended to operate in different circumstances. Section 17 prescribes the punishment inter alia for possession of “prepared opium”; Section 18 prescribes the punishment inter alia for possession of “opium” and Section 21 deals with the punishment inter alia for possession of “manufactured drugs”. Each one of these terms has been defined in the NDPS Act. “Opium” is defined in Section 2 (xv) as: “2.(xv) “opium” means- (a) the coagulated juice of the 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;” 14. There does not appear to be any acceptable evidence that the black 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”. FSL has given its opinion that it is “opium as described in the NDPS Act”. That is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to “opium derivative” within the meaning of 5 Section 2(xvi) (e). Clause (a) of Section 2(xi) defines the expression “manufactured drug” as: “2.(xvi) ‘manufactured drug’ means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) * * *” All “opium derivatives” fall within the expression “manufactured drug” as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was “manufactured drug” within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of “manufactured drug”. 15. Relying upon the case of Amarsingh Ramjibhai Barot, supra, a Division Bench of this Court in Daulat Ram vs. State of Himachal Pradesh, 2007 (2) Shim.LC 282, has held as under, vide paras 8, 9 and 10 of the judgment:- “8. From a bare reading of the definition of opium, it is clear that “opium” means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine. 9. In the present case, report of the Chemical Examiner Ex.PR says that the samples were tested for meconic acid and morphine. Report does not say that the stuff was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent. 10. The Hon’ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704,has held that where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy but simply expresses the opinion that the stuff is opium, as defined in the Narcotic Drugs and Psychotropic 6 Substances Act, such a report is not acceptable and not binding on the Court. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent.” 16. When CTL report Ex. PD is considered it the light of the law laid down by the Hon’ble Apex Court, as followed by this Court in the aforesaid judgments, it is abundantly clear that the conclusion arrived at thereunder simply goes to show that the samples of the contraband allegedly recovered from the convict tested positive for meconic acid and morphine and were found to contain contents of opium. However, the report is not in accordance with the definition of opium contained in Section 2 (xv) of the NDPS Act, as the same is absolutely silent about the presence of “the coagulated juice of the opium” and “percentage of morphine” and as such cannot be relied upon to fasten criminality against the accused for the offence for which he was charged. 17. in a similar case (Cr. Appeal No. 36 of 2001, State of Himachal Pradesh versus Dhian Singh, decided on 15.3.2011), we have taken the same view. 18. In view of the above, the appeal fails and is accordingly dismissed. 19. The appeal stands disposed of in the above terms. (R.B. Misra) Judge (V.K. Sharma) Judge 3rd May, 2011 (cr)