IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 452 of 1996 Date of decision: 31.3.2010 State of H.P. …. Appellant. Vs. Sanam Paljor and another. ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent : Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 11.1.1996 of the learned Sessions Judge, Kinnaur Sessions Division at Rampur, in Sessions trial No. 2-R/7 of 1995/93 whereby he acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as the NDPS Act). The prosecution story is that on 14.8.1992, PW-9 ASI Baldev Ram, who was at the relevant time posted at Police Station Pooh, was coming back to Reckong Peo and 4-5 police personnel were accompanying him. When he reached near Lippa he received secret information that the accused persons had 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 sown poppy plants in their land. He thereafter constituted a raiding party and associated Shri Gulab Singh, President of Gram Panchayat (not examined) and Hira Singh (PW-1) and Santanpur (PW-2) as independent witnesses. The accused persons were not found at the spot and had gone to attend the Kalchakra function. Gulab Singh, Pradhan identified the land of the accused persons on which Poppy plants were cultivated. Photographs were taken. Thereafter the said witnesses uprooted 570 poppy plants and 50 plants were taken into possession for the purpose of chemical examination and were sealed with seal impression ‘H’ vide seizure memo Ext.PW-1/A. Rukka Ext.PW-9/A was sent to the police station through constable Hir Pal. Site map was prepared and statements of the witnesses were recorded. The Chemical Examiner’s report Ext.PW-9/F was received and it was opined that the plants were of opium and opium could be prepared from the same. The accused were acquitted by the learned trial Court and hence the present appeal. There are some glaring lacunae in the prosecution case and this appeal can be disposed of on the following grounds:- Firstly, the ownership and the identity of the land from which the poppy plants were recovered has not been established. According to PW-9 the land in question was identified by Pradhan Gulab Singh. The said person has not been examined. No 3 doubt, demarcation of the land was got done through PW-4 Prem Singh, Kanungo, but admittedly this demarcation was done much later. There is no evidence on record to show that PW-4 actually demarcated the same land from which the poppy plants were removed. PW-9 ASI Baldev Ram is completely silent as to what he did with the poppy plants after seizing the same vide seizure memo Ext.PW-1/A. The plants were seized on 14.8.1992 and according to PW-6 Prithvi Singh, who was the MHC in Police Station Pooh, the same were deposited with PW-9 on 16th August, 1992 and thereafter on 8th October, 1992 he had sent one sealed parcel to FSL Bharari through PW-7 Chhering Dorje. There is no explanation as to where the plants remained from 14.8.1992 to 16.8.1992. No witness has stated that the seized plants were in his custody during this period and that they were not tampered with. As far as the statement of PW-6 is concerned, it may be noted that though he states that entry was made in the Malkhana Register, the Register itself has not been produced before the Court. When there is documentary proof of some act having been done, the best evidence is the documentary evidence itself. This witness surprisingly does not state why the plants were not sent for chemical examination for almost one 4 month and twenty-two days. Why were the plants kept in the Malkhana for so long? This witness further does not state that the plants were kept in safe custody and nobody had an opportunity to tamper with the same. Therefore, the link evidence connecting the report with the seized plants is missing. Lastly, the report of the Chemical Examiner does not satisfy the provisions of the Act. Opium poppy has been defined in the NDPS Act under Section 2(xvii) as follows:- (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; A bare reading of this provision shows that unless the Central Government has notified some other species it is only the species Papaver somniferum L., which is a contraband substance and opium poppy within the meaning of the Act. The report of the forensic laboratory is totally silent on this aspect and they have only stated that the plants belong to opium plants. This Court in a number of judgements has held that the Chemical Examiner must specify the species before a person can be convicted. 5 In view of the above discussion, we find that the learned trial Court was justified in acquitting the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 31st March, 2010 (Sanjay Karol) ™ Judge.