Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.173 of 1994. Date of decision: 02.04.2008. State of H.P. ….Appellant. Versus Swaran Singh. … Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the appellant : Mr. Rajinder Dogra, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. For the respondents: Mr.Vinay Thakur, Advocate, vice Mr. T.R. Chandel, Advocate. Surinder Singh, Judge (oral). In the instant appeal, State has assailed the judgment of acquittal passed by the learned trial court, in Sessions Case No.15 of 1993, decided on 18.1.1994, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short the Act). The respondent was put on trial, on the allegations that on 24.10.1992, at about 11.30 a.m., he was spotted by the police party headed by ASI Sansar Chand. The respondent was found carrying a gunny bag on his shoulder. On seeing the police party, he had tried to escape, but was apprehended in the presence of Darshan Singh and Karnail Singh, independent witnesses. The police suspected that the respondent might be having some contraband in his possession. Thus, ASI Sansar Chand gave him the option to be searched either by the police or before the Gazetted Officer, but the respondent opted to be searched - 2 - by him. On checking his gunny bag Ex.P1, the police found 3.500 Kgs of `Poppy husk’. Out of the recovered quantity, 100 grams of “Poppy Husk” was taken out as a sample, which was sealed with seal impression ‘S’ and the remaining bulk was also sealed with the same seal. The case property was taken into possession vide memo Ex.PA, in the presence of the independent witnesses aforesaid. The NCB Form was also filled in. The site plan Ex. PC was prepared and Ruqqa Ex.PB was sent for the registration of the case, on the basis of which FIR Ex.PF was formally registered. Statements of the witnesses were recorded. The case property was produced before the Station House Officer Sita Ram Parmar (PW6), who sealed it with seal impression ‘T’ and the same was deposited in the Malkhana with the MHC Raj Kumar (PW5). Sample was sent for its examination to the Chemical Laboratory, through Constable Puran Chand (PW4). As per the report Ex.PH of the Chemical Examiner, the sample contained the contents of ‘Chura Post’. After completing the investigation, the case was presented in the court for trial. The respondent was charge-sheeted. He pleaded not guilty and claimed trial. To prove the charge, the prosecution examined its witnesses. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendant upon him. His case was that of false implication. At the end of the trial, the respondent was acquitted by the learned trial court, on the grounds that the independent witnesses have not supported the case of the prosecution and there has been non-compliance of Section 50 of the Act. The findings of the learned trial court have been assailed in this appeal by the State. We have heard Shri Rajinder Dogra, learned Additional Advocate General, duly assisted by Mr. P.M. Negi, learned Deputy Advocate - 3 - General and Shri Vinay Thakur, learned counsel appearing for the respondent and carefully examined the evidence on record. At the very outset, we would like to say that the provisions of Section 50 of the Act are not attracted on the facts in hand, for the reasons that it was chance recovery, as the alleged contraband was found in the gunny bag, which was being carried by the respondent on his shoulder. Section 50 of the Act is only applicable in a case of personal search and not to the search of the luggage carried by the accused. But so far as the other evidence is concerned, it consists of the independent witnesses and official witnesses. The independent witnesses have not supported the case of the prosecution. The official witnesses have made an attempt to prove that the material recovered from the possession of the respondent was a “contraband” falling within the meaning of Section 2(xvii) of the Act by placing reliance on the chemical report Ex.PH. In Criminal Appeal No.295 of 1994, titled as Rajiv Kumar alias Guglu vs. State of H.P. [Latest HLJ 2008 (HP) 247], this Bench had noticed that the report of the Chemical Examiner 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, an opinion was given that the sample contained the contents of poppy straw and we felt that the tests were not enough to reach the conclusion that the stuff was in fact was poppy straw. Therefore, we ordered that the Chemical Examiner be summoned and examined as a court witness. Pursuant to our orders, the statement of the Chemical Examiner in that case was recorded. The Chemical Examiner had 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 any phenanthrene alkaloid can be extracted or a mixture of plants of the species of papaver somniferum-L and any other plant of papaver species - 4 - yielding opium or any other 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 Act. 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 which (plant) may not have been 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 test 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. In the case on hand also, the report of the Chemical Examiner is similar to the report in the Rajiv Kumar alias Guglu’s case supra. From the report, it transpires that the Chemical Examiner had conducted two tests for meconic acid and morphine and on finding both the tests positive gave the opinion that the samples contained contents of Chura Post (poppy husk). Confronted with the aforesaid preposition, the learned Additional Advocate general Mr. Rajinder Dogra with Mr. P.M. Learned learned Deputy Advocate General could not specifically convince us that the alleged recovered material from the respondent was poppy straw, within the meaning of Section 2 (xvii) of the Act, but according to them, the poppy straw means all parts ( except the seeds of the plant) of straw poppy from the plants or other plants from which opium or any phenanthrene alkaloid were extracted from which later plant, the Central - 5 - Government may, by notification in the Official Gazette, declare to the opium poppy for the purposes of this Act. For appreciation of the arguments of the learned Additional Advocate General, 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 read reference. “Section 2(xvii), “poppy straw” means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered any 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 extract and which the Central Government may, by notification in the Official Gazette declare to be opium poppy for the purposes of this Act.” 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 specifies 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 the Act. In the present case, as is clear from the aforesaid 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 - 6 - extracted and which the Central Government may have notified to be the opium poppy for the purposes of the Narcotic Drugs and Psychotropic Substances Act, 1985. If it is so, the report of the Chemical Examiner, Ex.PH, 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 respondent, the sample of which was analyzed by the Chemical Examiner, was poppy straw. 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 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 Act, was not binding on the Court. In view of what has been stated hereinabove, we hold that the substance allegedly recovered from the respondent has not been proved to be poppy straw, within the meaning of the Act aforesaid, and, therefore, - 7 - the respondent is 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 dismissed. The respondent is discharged of his bail bond entered upon b y him at any stage during the proceeding of the case. (Surjit Singh) Judge (Surinder Singh) Judge April 02, 2008. *Pds*