IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 36 of 2001 Date of decision 15.3.2011 State of Himachal Pradesh …..Appellant Versus Dhian Singh …..Respondent Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. Virender Singh Chauhan, Advocate. V.K. Sharma, J (Oral) The State is in appeal against the acquittal of the respondent (accused) for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act) by the learned Additional Sessions Judge, Mandi, H.P. vide judgment dated 29.7.2000. 2. In brief, the case of the prosecution was that on 19.1.1999 at about 8.30 P.M., a police party headed by ASI Neel Chand (PW-1) was present at Aut Bazar in connection with routine patrol duty and Nakkabandi when the accused who was carrying a ‘Pithu’ (bag) on his back was noticed coming from Banjar side towards Chowk, Aut Bazar. He did not stop despite having been asked by the police to do so. It was in such circumstances that he 2 was overpowered. On inquiry he disclosed his name, parentage and address. The conduct of the accused aroused suspicion that he might be carrying some contraband with him. Since the light at the place where the accused was apprehended was dim, he was taken to the nearby hotel of one Hem Raj alias Sadhu (PW-2), which was open at that time, where another person by name Thakur Dass (PW-3) was also present. ASI Neel Chand checked the bag being carried by the accused and felt that some paste like material was contained therein. When he smelt the same, it was like opium. Suspecting violation of the provisions of NDPS Act, the police officer prepared a rukka and sent the same to SHO Police Station, Aut for registration of a case. Consequently, FIR was registered. Thereafter SI SHO Vidyadhar proceeded to the spot and in the presence of independent witnesses PW-2, Hem Raj and PW-3, Thakur Dass, served a notice under Section 50 of the NDPS Act upon the accused, disclosing that he was suspected of possessing some contraband and his personal search was to be carried out and that whether he wanted to be taken for such search to a gazetted officer or Magistrate. However, the accused consented for search by SI SHO Vidyadhar. Consequently, the bag of the accused was searched. It was containing a white color polythene packet, in which three packets containing paste like material were kept. All the three packets were containing opium. Scales and weights were arranged and the recovered contraband was weighed and was found to be 350 grams, 490 grams and 400 grams, respectively. Two samples each weighing 10 grams were taken out 3 of each of the three packets. Thus, in all six samples were drawn. The samples and bulk of the recovered contraband were separately sealed with seal bearing impression “T”. The samples of the recovered contraband were sent for examination to Chemical Test Laboratory (CTL), Kandaghat and report Ex. PX was obtained, which revealed that the same contained contents of opium. 3. On completion of investigation the accused was sent up to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 13 witnesses. 4. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein, he pleaded innocence and false implication. However, he did not lead any evidence in defence. 5. After hearing the parties, the learned trial Judge proceeded to acquit the accused. 6. We have heard the learned Additional Advocate General for the appellant/State, learned counsel for the accused and gone through the records. 7. The graveman 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 4 (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;” 8. The samples of the alleged contraband recovered from the accused were analyzed vide report Ex. PX, operative part whereof is as under:- “a) Qualitative Tests:- Tests for meconic acid = positive. b) Result of qualitative test. Test for morphine = positive. c) General Observation of the chemist – I am of the opinion that the exhibits contain contents of opium.” 9. 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”. 10. 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 intr 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- 5 (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 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 6 “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”. 11. 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. 8. 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 7 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.” 12. When CTL report Ex.PX 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 there-under simply goes 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. 13. In Cr. Appeal No. 365 of 2003, Surinder Singh alias Chhinda Vs. State of Himachal Pradesh, decided on 28.2.2011 in a similar case, though arising out of conviction under Section 18 of NDPS Act, one of us (V.K. Sharma, J) has taken the same view. 8 14. In view of the above, the appeal fails and is accordingly dismissed. 15. The appeal stands disposed of in the above terms. (R.B. Misra) Judge (V.K. Sharma) Judge March 15, 2011. (KRS)