IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.390 of 2005 Decided on : May 27, 2008 Har Shiv Kumar …Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge( Oral ) Appellants are aggrieved by the judgment of the trial Court whereby they have been convicted of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly being in possession of 9 quintals and 62 kgs of poppy straw, contained in 24 bags, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo rigorous imprisonment for a further period of two years. 2. Prosecution story, as per record, is as follows. On 28th May, 2004, PW-12 Jagdish Ram, SHO, Police Station, Nalagarh, received information that the present appellants and one Nazar Khan indulged in illicit trade of poppy husk and that Whether reporters of the local papers may be allowed to see the judgment? …2… they had kept huge quantity of such husk in the house of one of them, namely Har Shiv Kumar. Information was reduced into writing and sent to the superior Police Officer. PW-12 Jagdish Ram then formed a party, headed by himself. Other members of the party were PW-14 SI Balbir Singh, PW-5 HC Neelam Kumar, PW-8 HC Hukamdeen and PW-13 HHC Rup Singh. The party proceeded to village Majholi where appellant Har Shiv Kumar had his house, in which the poppy husk was reported to have been stored. On reaching the spot, PW-1 Pritam Dass and PW-2 Subhash Chand were associated as independent members of the party. Appellant Har Shiv Kumar was present on the spot. After some time, Nazar Khan (acquitted accused) also reached the spot. Police then required appellant Har Shiv Kumar to open the lock of the door of his house. He opened the door. Search of the house was conducted and 24 bags were found lying in a room and the kitchen of the house. Three samples were taken out from each of the 24 bags. All the 72 samples were made into separate parcels. The parcels and the gunny bags were sealed. One sample from each of the 24 bags was sent to the Chemical Examiner, who, wide reports Ex. PX-1 to Ex. PX-8, opined that the contents of the samples were of poppy husk. 3. On receipt of the reports of the Chemical Examiner, appellants and their accomplice Nazar Khan were challaned. Trial Court charged them for offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and put them on trial, when they pleaded not guilty. …3… 4. During trial, the two independent witnesses, named above, did not support the prosecution version. However, PW-12 Jagdish Ram (SHO), PW-14 SI Balbir Singh, PW-13 HHC Rup Singh, PW-8 HC Kukamdeen and PW-5 HC Neelam Kumar testified that 24 bags of poppy straw were recovered from the house of appellant Har Shiv Kumar and those bags belonged to both the appellants. Trial Court has believed the testimony of the above-named police officials and convicted and sentenced the appellants, as aforesaid. Their accomplice Nazar Khan has, however, been acquitted. 5. Learned counsel representing the appellants submits that the reports of the Chemical Examiner, Ex. PX-1 to Ex. PX-8, do not prove that the stuff, in question, was poppy straw. He submits that the Chemical Examiner conducted only two tests to ascertain whether the stuff contained meconic acid and morphine and on finding the tests positive, in that respect, jumped to the conclusion that the stuff was poppy straw. He further submits that these tests do not, in any way, indicate that the stuff was obtained from the plants referred to in Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. He submits that unless the straw is proved to be of any of the plants mentioned in the aforesaid provision of the Narcotic Drugs and Psychotropic Substances Act, it cannot be held to be poppy straw. 6. A Division Bench of this Court (comprising of both of us) in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247, noticed that the report of the Chemical Examiner …4… in that case showed that two tests were conducted in respect of the sample of poppy straw to ascertain whether meconic acid and morphine were present in the sample stuff and on finding both the tests positive, opinion was given that the sample contained contents of poppy straw. The Bench felt that the tests perhaps were not enough to reach the conclusion that the stuff was, in fact, poppy straw. Therefore, the Bench ordered that the Chemical Examiner be summoned and examined, as a Court witness. Pursuant to the said orders, the Chemical Examiner appeared in that case and his statement was recorded. 7. The Chemical Examiner in the aforesaid case stated that the two tests conducted by him were indicative that the straw was either of the plant of species of papaver somniferum-L or a plant of any other species of papaver from which opium or phenanthrene alkaloid can be extracted or a mixture of plants of the species of papaver somniferum-L and any other plant of papaver species yielding opium or any phenanthrene alkaloid. He admitted that the tests conducted by him did not specifically indicate whether the straw was of a plant of 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 for the purpose of Clause (b) of Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. On further questioning, he admitted that the straw could have been of a plant of papaver species yielding opium or any other phenanthrene alkaloid and …5… which(plant) may not have been even notified by the Central Government for the purpose of Clause (b) of Section 2(xvii) of the Act. He stated that there was no equipment available in his laboratory for conducting any botanical tests to determine the species of a plant by examining the straw. He also admitted that there was no expert available in his laboratory to give definite opinion about the species of the plant by analyzing/testing the straw supplied to him. 8. In the case on hand also, the report of the Chemical Examiner is similar to the report in the above-cited case. The Chemical Examiner conducted two tests for meconic acid and morphine and on finding both the tests positive gave the opinion that the samples contained contents of poppy husk. 9. Referring to the reports Ex. PX-1 to Ex. PX-8 and the statement of the Chemical Examiner, the substance whereof has been noticed hereinabove, the learned counsel for the appellants urged that there was no evidence on record that the substance that was allegedly recovered from the house of the appellants was poppy straw, within the meaning of Section 2(xviii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He submitted that poppy straw means all parts (except seeds) of the plant of the species of papaver somniferum-L or the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted and which (the later mentioned plant) the Central Government might have notified to be opium poppy. …6… 10. For appreciation of the argument of the learned counsel, definitions of “poppy straw” and “opium poppy” given in the Narcotic Drugs and Psychotropic Substances Act, 1985, need to be noticed. The same are reproduced here for ready reference. “Section 2(xviii), “poppy straw” 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.” 11. 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 (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 declare to be opium poppy for the purposes of Narcotic Drugs and Psychotropic Substances Act, 1985. 12. In the present case, as is clear from the aforesaid statement of the Chemical Examiner, the two tests conducted by …7… 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 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 opium poppy for the purpose of the Narcotic Drugs and Psychotropic Substances Act, 1985. If it is so, the reports of the Chemical Examiner, Ex.PX-1 to Ex. PX-8 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 appellants, the sample of which was analyzed by the Chemical Examiner, was poppy straw. 13. In this view of the matter, we derive strength from a judgment of the Hon’ble Supreme Court in Amarsingh Ramjibhai Barot versus State of Gujarat, (2005) 7 Supreme Court Cases 550. Facts of that case were that some black substance, looking like opium, was recovered from the accused. A sample of the substance was sent to the Chemical Examiner, who reported that the sample was “opium as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, containing 2.8 per cent anhydride morphine and also pieces of poppy flowers (posedoda)”. The Hon’ble Supreme Court noticed the definition of opium as given in Section 2(xv) of the Narcotic Drugs and Psychotropic Substances Act, 1985, according to which, “opium” means (a) the coagulated juice of opium poppy; and (b) any …8… 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. The Hon’ble Supreme Court held that there did not appear 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” and that the opinion given by the FSL that it was opium, as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, was not binding on the Court. 14. In view of what has been stated hereinabove, we hold that the substance allegedly recovered from the appellants has not been proved to be poppy straw, within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985, and, therefore, they are not liable to conviction and punishment for the offence described in and made punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Consequently, the appeal is accepted, judgment of the trial Court convicting and sentencing the appellants for offence under Section 15(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is set aside and the appellants are acquitted. They being in jail, serving out the sentence awarded by the trial Court, are ordered to be set at liberty forthwith, in case their detention is not required in any other case. ( Surjit Singh ), J May 27, 2008(sd) ( Surinder Singh ), J