IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 171 of 2007 Judgment reserved on: 29.8.2008 Date of Decision: September 3, 2008 Raman Kumar …Appellant. Versus. State of 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(s): Mr. G.C.Gupta, Sr.Advocate with Mr. Amar Deep Advocate. For the Respondent(s): Mr. R.M.Bisht, Deputy Advocate General. __________________________________________________________________ Deepak Gupta, J. This appeal is directed against the judgment of the learned trial Court whereby the appellant has been convicted of an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lacs and in default of payment of fine to undergo rigorous imprisonment for a period of 5 years. The relevant facts, necessary for decision of the case are that one police party headed by PW10 SI Karam Singh along with others including PW1 Harjeet Sigh were on patrol duty. When this party - 2 - reached at Bhadroa Dosarka near Damtal Temple, the accused was found coming from the opposite site. On seeing the police party, he tried to run away but he was apprehended. After seeking his consent, search of the accused was conducted and one polythene bag was recovered from the possession of the accused. In this polythene bag there was another polythene packet which was found containing some substance suspected to be opium. The substance was weighed and was found to be 2 Kg. 315 grams. Out of this, two samples of 20 grams each were taken in two separate packets. They were all sealed separately. One of packets was sent to the Chemical Examiner for analysis who opined that the contents of the sample were of opium. Thereafter challan was filed against the accused and he was tried. After trial, he was convicted and sentenced as mentioned hereinabove. We have heard Shri G.C.Gupta, learned senior counsel for the appellant and Shri Ram Murti Bisht, learned Deputy Advocate General on behalf of the State. Though a number of questions have been raised before us, we need not go into all the questions and can decide the appeal only on one short ground. According to Mr. G.C.Gupta, the prosecution has failed to prove that the stuff which was recovered from the appellant/accused was opium within the meaning of Section 2 Clause (xv) of the Act. According to him, the report of the Chemical Examiner Ex.PX, does not show that the stuff recovered from the accused was coagulated juice of opium poppy or that it was a mixture - 3 - of coagulated juice with some other material having morphine content of more than 0.2 per cent. Opium has been defined, as follows under Clause (xv) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985: “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. 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. In the present case, according to the report of the Chemical Examiner Ex. PX, the samples were tested for meconic acid and morphine. Report does not say that the substance which was tested was coagulated juice of opium poppy or it was a 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. The apex Court in Amar Singh Ramjibhai Barot v. State of Gujarat, 2008 (7) SCC 550, dealt with the question as to whether the analysed substance was opium or not. The apex Court referred to - 4 - various provisions of the Act including the definition of opium and opium derivative and held as follows:- 11. The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was "opium as described in the NDPS Act" containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. 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. In the said case the Apex Court has clearly held that the Forensic Science Laboratory (FSL) should not only give its opinion as to what is the substance but should indicate that the substance is a contraband by indicating what was contained in the substance. Following the aforesaid judgment of the Apex Court, a Division Bench of this Court in Daulat Ram v. State of H.P, 2007 (2) Shim. L.C. 82, wherein these reports were virtually identical, held as follows:- 11. In the case before us, as already noticed, the report does not say that the substance is coagulated juice or is a mixture of coagulated juice with some other material having morphine content more than 0.2 per cent. Therefore, the report is held to be unacceptable and not binding. Now, if the report is excluded, there remains no - 5 - evidence in support of the prosecution allegation that the stuff recovered from the appellant is opium. We are bound by the judgment of the Supreme Court as well as the earlier judgment delivered by a Division Bench of this Court. The report Ex.PX in the present case also does not disclose that the substance which was analysed was coagulated juice of the opium or it was a mixture with or without some other material. There is no mention as to what were the morphine contents. It is only mentioned in the report in respect of the morphine is that sample tested positive for morphine but does not show what was the percentage of morphine. The morphine content should have been at least 0.2%. The report is totally silent on this aspect. This report, therefore does not help the prosecution. There is no other evidence in the matter with regard to the identity of the substance. In view of the above discussion, we have no manner of doubt that the appellant could not be convicted. Hence the appeal is accepted and the judgment of the learned trial Court convicting and sentencing the appellant for the offence under Section 18 NDPS Act is set aside and the appellant/accused is acquitted. The appellant who is in jail is ordered to be set at liberty forthwith in case his detention is not required in any other case. ( Deepak Gupta ), J. September 3, 2008. ( V.K. Ahuja ),J. s. - 6 -