IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 106 of 2003 Decided on: 09.11.2011 State of H.P. …Appellant. Versus Mohan Singh …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon'ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Inder Sharma, Advocate, vice Mr. N.K. Thakur, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 16.11.2002, passed by the learned Sessions Judge, Una, in Sessions Case No. 9 of 2002, Sessions Trial No. 8 of 2002, whereby he acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story in brief is that on 19th January, 2002, ASI Akshay Kumar (PW-13) and other members of the police 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- party met PW-1, Constable Upnesh Kumar, at Bus Stand Haroli at about 11.20 a.m. Upnesh Kumar had received secret information that accused Mohan Singh is indulging in the business of selling poppy husk at his house. The statement (Ex. PA) of Upnesh Kumar was recorded by ASI Akshay Kumar and forwarded to Police Station Una for registration of a case. The report Ex. PA was prepared under the provisions of Section 42 (1) of the Act and sent to the office of Superintendent of Police, Una through Constable Mohinder Kumar. Thereafter, Akshay Kumar alongwith other police officials proceeded towards the house of the accused at village Kante. Two independent witnesses, Trilochan Singh (PW-2) and Pritam Singh (not examined) were associated with the police party. The accused was found present at his house. The Investigating Officer informed the accused that they had suspicion that he was in possession of poppy husk and wanted to search his house and also his person. He was given an offer whether he wanted to be searched in presence of some gazetted officer or Magistrate. The accused allegedly gave his consent to be searched by the police officials. Vide memo, Ex. PE, he was searched and from his personal search, one plastic envelope was found in his jacket and inside this envelope, poppy husk weighing 1.600 grams was found. Two samples were taken out of this poppy husk. 3. After the recovery of the poppy husk from the personal search, Mohan Singh was arrested and, thereafter, he made a disclosure statement that he had kept seven bags of poppy husk concealed in two fields about which he alone knew. The memo, -: 3 :- Ex. PH, was prepared in this behalf and signed by the accused and the two marginal witnesses. The accused allegedly led the police to the place in front of the house of Karam Singh (PW-7) and from this place, seven bags of poppy husk were recovered. Poppy husk was weighed and two samples of 500 grams were taken out of each of bag separately. Thus, in all, there were two samples taken from the poppy husk recovered from the personal search of the accused and 14 samples from the seven gunny bags. One sample each, i.e., 8 samples in all were sent to the Chemical Examiner for analysis and on analysis, the Chemical Examiner gave a report that the samples contain the contents of poppy husk. On this basis, the accused was charged and challaned with having committed the offence aforesaid. 4. The accused has been acquitted on other grounds, but in appeal, the main contention of the Mr. Inder Sharma, learned counsel appearing for the respondent, is that the poppy husk recovered at the spot allegedly from the possession of the appellant cannot be said to be poppy within the meaning of the Act as the report of the Chemical Examiner is incomplete and does not lead to the inference that what was recovered was opium poppy within the meaning of the Act. 5. The learned counsel for the respondent has drawn our attention to the term ‘poppy straw’ used in Section 2(xviii), which reads as under: “(xviii) ”Poppy straw” means all parts (except the seeds) of the opium after harvesting whether in -: 4 :- their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.” 6. According to the decision of the Apex Court in Ajaib Singh versus State of Punjab, 2000, CRI. L.J. 2270, the term ‘poppy husk’ falls within term ‘poppy straw’ as defined in the Act. Thus, what was recovered from the possession of the appellant can be said to be poppy straw within the meaning of the definition given above. However, the mere use of the word ‘poppy straw’ does not lead to the inference that it was opium poppy within the meaning of the Act. The term ‘opium poppy’ has been defined in Section 2(xvii) as under:- “(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.” 7. All these terms were interpreted by a Division Bench of this Court in Rajiv Kumar alias Guglu versus State of H.P., Latest HLJ 2008 (HP) 247. In that case, the Division Bench of this Court had even felt the necessity of summoning the Chemical Examiner and after referring to the statement of the Chemical Examiner and his report, the Division Bench had observed in Paras 8 and 9 of the judgment as under:- “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 along with the definition of opium poppy, means (a) all parts (excepts seeds) of the plant of the species of papaver somniferum-L -: 5 :- and all parts (excepts seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted ad which the Central Government may by notification in the official gazette declare to the opium poppy for the purpose of Narcotic Drugs and Psychotropic Substances Act, 1985. 9. In the present case, as is clear from the statement to 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 spices of papaver somniferum-L or a plant 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 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.” 8. The Division Bench while coming to the aforesaid view relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot versus State of Gujarat, (2005) 7 SCC 550. 9. From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered in Rajiv Kumar’s case supra, it is apparent that the prosecution must prove that the parts of the plant recovered belonged to the plant of the species of papaver somniferum or the plant of any other species of papaver from which opium or phenanthrene alkaloid can be extracted and which plant has been duly notified by the Central Government. 10. In the present case, the relevant portion of the report of the Chemical Examiner reads as follows:- -: 6 :- “Result of: (a) Test for meconic acid : Positive (b) Test for morphine : Positive. (c) General Observation of the chemist: I am of the opinion that all eight exhibits marked here as 206/1, 206/2, 206/3, 206/4, 206/5, 206/6, 206/7 and 206/8 contain the contents of poppy husk.” It is, therefore, clear that the Chemical Examiner only found that the tests for meconic acid and morphine were positive. The Chemical Examiner has not given any opinion as to whether the parts of the plant belonged to papaver somniferum or not. In this case, we are not inclined to call the expert and seek his opinion since the report is identical to the report in Rajiv Kumar’s case supra. There is no mention in the report of the Chemical Examiner as to whether he conducted any test to determine the species of the plant. As such, this report is not binding. 11. In view of the above discussion, we hold that the report submitted by the Chemical Examiner does not prove that the contents of the sample tested were that of poppy husk within the meaning of the Act and the respondent was not liable to be convicted. Therefore, we find no merit in this appeal, which is accordingly rejected. Bail bonds discharged. (Deepak Gupta) Judge (V.K. Ahuja) Judge November 09, 2011 (rajni)