IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 40/1998 Decided on: 17.3. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Amrik Singh. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Addl. Advocate General. For the Respondent : Mr. Karan Singh, Advocate. ____________________________________________________ Rajiv Sharma, J (oral). A challenge has been laid by the State to the judgment dated 4.9.1997 passed by the learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 18-N/7 of 1997/96, whereby respondent has been acquitted for offence punishable under section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985. The prosecution case, in a nutshell, is that a bus belonging to Uttar Pradesh Roadways bearing registration No. UP-02B-7271 arrived at toll tax barrier at Yamuna bride at Paonta Sahib at 2.30 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 A.M. in the intervening night of 10/11.5.1996. The bus was intercepted by the police party headed by PW-7 ASI Dabe Ram. Respondent was found occupying seat No. 49 of the bus. A blue coloured rexin bag Ex.P-1 was kept found on the floor of the bus near the legs of the respondent. He claimed the bag to be his bag. The bag was opened in the presence of Head Constable Pradeep Kumar, driver of the bus, Nakshattar Singh, conductor of the bus, Kanhiya Lal (PW-2) and in presence of the respondent. It contained poppy husk. PW-1 Ved Parkash was also associated with the search of the bag. The contraband was weighed on the spot and it was found weighing 12 kgs. A sample weighing 300 grams was separately taken out from the recovered poppy husk and this was sealed in a cloth parcel with the seal having impression “A”. Remaining poppy husk was also sealed with the same seal. FIR Ex. PH was registered at Police Station, Poanta Sahib on the same night at 3.40 A.M. The respondent was formally arrested. The sample was sent to Chemical Examiner, Kandaghat. It was opined to be containing opium as per report Ex.P-1. The challan was put up before the trial court after completing formalities under section 207 of the Code of Criminal Procedure. Prosecution examined as many as seven witnesses in support of its case. Respondent was examined under section 313 of the Code of Criminal Procedure. He has denied that he was carrying bag Ex.P-1 or it belonged to him or it was found in his possession. 3 Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent. He has further argued that the learned trial court has misread the evidence led by the prosecution. Mr. Karan Singh has supported the judgment of the learned trial court. We have heard the learned counsel for the parties and perused the record carefully. The prosecution has mainly relied upon the statements of two independent witnesses. PW-1 Ved Parkash has not supported the prosecution case. He has deposed that he had not gone inside the bus. He has also denied that bag Ex.P-1 belonged to respondent No.1. According to him, Ex.P-1 was lying on the ground where many passengers were standing. He has also denied that any weighing or separation of sample took place at the place of recovery. He has testified that bus passengers and the respondent were taken by the police to Police Station. PW-2 Kanayiya Lal, conductor of the bus, has also not supported the prosecution case. He has also deposed that the bus was taken to the police station where the process of weighing and separation of sample took place. These two witnesses have not deposed that the bag Ex.P-1 was found in exclusive possession of the respondent. PW-7 Dabe Ram (ASI) has deposed that the weighing process and separation of sample took place on the spot. However, PW-1 Ved Parkash and PW-2 Kanahiya Lal have deposed that weighing process took place at the Police Station. 4 In his cross-examination, he has deposed that bus was taken away by the driver and conductor after 1 ½ hours. However, PW-1 Ved Parkash and PW-2 Kanahiya Lal have deposed that the bus was taken to the Police Station. PW-7 has denied that the bus was taken to the Police Station. There are material contradictions in the statements of PW-1 Ved Parkash, PW-2 Kanayiya Lal and PW-7 Dabe Ram. The samples were deposited with PW-4 HC Ajay Kumar. The entry was made in respect thereof in the Malkhana register. He further handed over both these parcels to MHC Shanti Sarup on 17.5.1996. PW-5 HC Shanti Sarup handed over the samples to constable Jeet Ram on 19.5.1996 to carry the same to Chemical Examiner, Kandaghat without tempering. According to Ex.P-1 Meconic Acid was present and, therefore, the exhibit contained contents of opium. A Division Bench of this Court in Rajiv Kumar alias Guglu vs. Sate of H.P., Latest HLJ 2008 (HP) 247, held as under: - “7. 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- 5 (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.” 8. 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. 9. In the present case, as is clear from the statement of the Chemical Examiner, recorded by us, the two tests conducted by 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 the opium 6 poppy for the purposes of the Narcotic Drugs and Psychotropic Substances Act, 1985. If it is so, the report of the Chemical Examiner, Ex. PW- 10/L, 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 appellant, the sample of which was analyzed by the Chemical Examiner, was poppy straw.” In the instant case, the report shows that Meconic Acid was present. There is no specific finding given by the Chemical Examiner that the contraband belong to the species Papaver Somniferum L. It was necessary for the Chemical Examiner to give opinion whether the plant belong to Papaver Somniferum or not. Accordingly, no reliance can be placed on this report, i.e. Ex.P-1. Consequently, in view of the above discussion, interference with the judgment of the trial court, is not warranted. Hence, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Surjit Singh), J (Rajiv Sharma), J 17.3.2010 *awasthi*