IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.157 of 1999 Date of decision: 25.5.2010 State of H.P. ... Appellant Versus Gian Chand … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Anup Chitkara, Advocate. ____________________________________________________________ Deepak Gupta, J. (oral) This appeal by the State is directed against the judgment dated 2.12.1998 passed by the learned Sessions Judge, Chamba, in Sessions Case No.2 of 1997 whereby he acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution case, in brief, is that on 8.4.1995, PW-7 Ramesh Chand Pathania received secret information that the accused had planted poppy plants in his fields. He immediately sent a Ruqua Ext.PH to the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Police Station, Dalhousie and also informed Dy.S.P. Uttam Chand. He thereafter associated photographer Sh.Sham Sunder and visited the spot in the presence of PW-1 Dev Raj and PW-2 Uttam Chand. He found 88 plants of Opium growing in the field wherein a garlic crop was also planted. Photographs were taken through photographer Sh.Sham Sunder. Tatima Ext.PD, copy of Jamabandi Ext.PE and certificate Ext.PF were obtained from Patwari PW-3 Smt.Nirmala. Thereafter, he uprooted 88 poppy plants from the field. 10 plants were separated and 78 were kept as bulk. The bulk as well as separated plants were sealed in two separate gunny bags with seal ‘T’. Seizure memo Ext.PA was prepared. The accused thereafter was informed of the grounds of arrest vide arrest memo Ext.PJ and arrested vide memo Ext.PB. Thereafter, other codal formalities were completed on the spot. Special report was sent to the Dy.S.P. Dalhousie, copy of which is Ext.PG. Photographs were exhibited as Exts.P-2 to P5 in the statement of the Investigating Officer. Though the Investigating Officer and other witnesses have been cross examined with regard to the ownership of the field inasmuch as questions have been put to them that the fields have not been demarcated at the time of 3 the search and seizure operation, the fact is that the accused in answer to question No.13 did not deny the ownership of the field but only stated that he had not planted any opium plants in his field. PW-3 Patwari admitted that she did not carry out any demarcation at the spot. The accused in his statement under Section 313 Cr.P.C. has not denied the correctness of Tatima and Jamabandi of the land. His case however is that he had not planted any opium plants in his fields. It was the duty of the prosecution to have proved that the plants were uprooted from the fields belonging to the accused. In fact the trial Court has come to the conclusion that this fact has been proved by the prosecution. The trial Court has however acquitted the accused on the ground that it has not been proved that the plants in question were cultivated by the accused. We are not in agreement with the very wide sweeping statement made by the learned trial court that it is for the prosecution in every case to prove that the offending plants have been cultivated by the accused. The law does not require the impossible to be proved. In such cases it is impossible for the State to prove as to who 4 sowed the seed and who looked after the crop. Therefore, in a given case where it is proved that the plants were found growing in a field exclusively in the possession of the accused a presumption can be raised that he may be the person who has planted the same. In the present case, however, we are of the considered view that the prosecution has failed to prove this fact. There may be spontaneous growth of a contraband substance in the field. It is for the prosecution to prove the dimensions of the fields and whether the growth was spontaneous or not. In support of its case, the prosecution has relied upon the photographs. Unfortunately photographs have not been proved in accordance with law. Neither the photographer was examined nor the negatives of these photographs got proved. Therefore, we cannot even look into these photographs because they have no evidentiary value whatsoever. Lastly, the Chemical Examiner in his report has only stated that he is of the opinion that exhibit contains contents of opium. Therefore, even if it be accepted that the plants were uprooted from the fields of the accused, then also report Ext. ‘PL’ is not sufficient to hold the 5 accused guilty. Opium poppy has been defined in Section 2 ( xvii) of the Act as under:- “(xvii)” opium poppy” means- (a) The plant of the species papaver somniferum-L; and (b) The plaint 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.” The question as to what is opium poppy was considered by a Division Bench of this Court in Rajiv Kumar alias Guglu Vs. State of H.P., Latest HLJ 2008(HP) 247, wherein this Court held as follows: “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 part 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.” From a bare perusal of the definition of opium poppy and the judgment of the Division Bench rendered 6 in Rajiv Kumar’s case supra, it is apparent that the prosecution must prove that the part of the plant recovered belonged to the plant of the species of papaver somniferum-L 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. In the present case, the relevant portion of the Chemical Examiner reads as follows:- “(a) Macroscopic exam: Poppy heads with plants. Meconic Acid: Present Morphine: 0.3% I am of the opinion that the exhibit contains contents of opium.” 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 by opinion as to whether the parts of the plant belonged to papaver somniferum-L or not. 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 sufficient to hold the accused guilty. 7 In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. May 25, 2010 ( Rajiv Sharma ), J. PV