IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 91 of 2009. Decided on: 25th February, 2010. _______________________________________________________ Roshan Lal ….Appellant. Versus State of HP ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). Appellant is feeling aggrieved by the judgment of conviction passed by the learned trial Court under Section 15 (b) of the Narcotic Drugs Psychotropic Substances Act, 1985, in short “the Act” for allegedly possessing 14.500 Kgs. “poppy straw” (Bhuki) and was sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.50,000/- with default clauses, as such filed the instant appeal on law and facts. The prosecution story as emerges from the prosecution evidence can be summed up thus. On 16th July, 2006, a police party headed by PW-14 ASI Chain Singh was on excise raid and was on their way to village Channi in District Kangra, HP. At about 4.30 a.m., when they reached near ‘Tiyora Sugar Factory’, a secret information was received that the appellant would be coming on his scooter from the side of Milwan village alongwith some contraband. PW-14 aforesaid prepared the report Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - Ext.PW-6/A and sent it to the, SDO (P), Nurpur through HHC Karnail Singh and Ruka was also sent to the SHO for the registration of the case. Thereafter he associated two independent witnesses, i.e., PW-1 Mengha Ram and PW-2 Ram Lal the case file was also received and they laid a Naka at a place known as ‘Tiyora’. The appellant came on a scooter around 7.15 a.m. from Milwan side. He was signaled to stop, but seeing the police party he got perplexed and dashed the scooter with the stationary police vehicle. He was over-powered. Police informed him that he was suspected of having contraband in his possession and was given an option to be searched by the police or by the Gazetted Officer or by the Magistrate. The appellant opted to be searched by the police party. To this effect consent memo Ext.PW-1/B was prepared. The police party rendered themselves to be searched by the appellant including the independent witnesses, but nothing incriminating material was found. To this effect memo Ext.PW-3/B was prepared. Thereafter PW-14 ASI Chain Singh conducted the personal search of the appellant, but nothing was recovered from him. However, on the search of the scooter, beside the footrest one plastic bag was found on which ‘Tata Salt’ was written. On its search, police recovered 9 packets of Bhuki (“poppy husk”). The weights and scales were arranged and entire recovered material was weighed. It came to be 14.500 Kgs. Out of the recovered quantity, two packets weighing 100 grams each were prepared and put in polythene packet and each packet was sealed with seal impression “A” with three seals and the remaining packet of Bhuki was put in the bag alongwith - 3 - nine empty packets. The bag was put in a parcel of cloth and sealed with seal impression “A”. The NCB forms in triplicate were prepared. The seal after its use was handed over to PW-1 Mengha Singh. The case property alongwith scooter bearing registration No.PB-35B-2688 was taken into possession vide memo Ext.PW-1/A. Its copy was also supplied to the appellant. PW-14 ASI Chain Singh prepared the site plan Ext.PW-14/B and recorded the statements of the witnesses. He arrested the appellant and brought him to the Police Station alongwith the case property. The case property was produced before Inspector/ SHO Ambiya Ram. He resealed the said parcels with the seal producing English letter “S”. Thereafter the case property was handed over to PW-13 officiating MHC Budhi Singh. On 17th July, 2006 special report was prepared and sent to Superintendent of Police, Kangra at Dharamshala, copy whereof is Ext.PW-5/A. The photographs of the case property were also obtained in the Police Station. The samples of “poppy-husk” were sent for the chemical examination through PW-10 Constable Ranjit Singh, which tested positive, as per report Ext.PW-12/B. After completing the investigation the case was presented in the Court for the trial of the appellant. The appellant was put to trial. He abjured his guilty and claimed trial. To prove its case the prosecution examined 14 witnesses. Respondent was also examined under Section 313 of the Code of Criminal Procedure. His case is of denial simplicitor. No evidence in defence was led. The learned trial Court believed - 4 - the statements of the witnesses and convicted and sentenced the appellant as aforesaid, which is under challenge in this appeal. Shri Rakesh Jaswal, learned Counsel for the appellant advanced two facet arguments. Firstly, the link evidence is not complete. Secondly, the report of the Public Analyst has opined that the samples sent to him were of “poppy-straw”, but according to him result of the examination does not conform to the definition of either “poppy-straw” or “opium-poppy”. To strengthen his arguments he has relied upon a judgment of Division Bench of this Court in Rajiv Kumar alias Guglu v. State of H.P. 2008(1) SLC 168. Thus he ventilated that if the evidence of the prosecution is examined in the light of the above facts and law, it is no case for the conviction of the appellant. Contra, Shri J.S. Rana, learned Assistant Advocate General, supported the impugned judgment of conviction and sentence and forcefully argued that the link evidence in this case is complete. There was no scope of tampering with the sample parcel. The samples were received in the Laboratory with the seals which were affixed by the Investigating Officer and the SHO aforesaid and further that the report of the Chemical Examiner confirms that the material which was examined by him was “poppy- straw” the possession of which is an offence. Thus, the arguments advanced by the learned Counsel for the appellant deserve to be rejected. I have considered the rival contentions of the parties in depth and have gone through the evidence thoroughly. The first point taken up by the learned Counsel for the appellant is that the link evidence in this case is not complete. For that the statements of PW-14 ASI Chain Singh, PW-12, - 5 - Ambiya Ram, PW-13 HC Budhi Singh, PW-10 Constable Ranjit Singh and PW-9 MHC Rajinder Singh are important. PW-14 ASI Chain Singh stated that the appellant was caught red-handed alongwith consignment of the above contraband which was kept hidden by him in the footrest of the scooter. It was recovered and its samples were taken. The case property was sealed with seal impression “A”. The appellant was arrested and after completing all the codel formalities the case property and the appellant were produced before PW-12, Inspector /SHO Ambiya Ram. PW-12 Inspector/SHO Ambiya Ram corroborated his version testified that he had resealed the case property which seal producing the impression of English letter “S”, thereafter the case property was deposited in the Malkhana on 19th July, 2006, with PW-13 HC Budhi Singh who was officiating as MHC in absence of MHC Rajinder Singh, who was on leave, which fact has been admitted by PW-13, HC Budhi Singh. In this case both the samples were sent through PW- 10 Ranjit Singh for its analysis to CTL, Kandaghat vide RC No.63/21, as stated by HC Budhi Singh aforesaid and PW-10 Ranjit Singh. Admittedly, samples were returned with the objection in writing Ext.PW-13/C dated 20th July, 2006 to PW-9 MHC Rajinder Singh, who by then had joined the duties on 28th September, 2006. Thereafter samples sent to CFSL, Chandigarh vide RC No.104/21 Ext.PW-9/A. On 28th September, 2006 again, the samples were returned with some objections which are not on record. Constable Ranjit Singh (PW-10) stated that he submitted the objections alongwith documents to MHC on 2nd October, 2006 but he did not say anywhere whether the samples taken by him to - 6 - the Laboratory were at any time returned and deposited in the Malkhana with MHC from where he was again entrusted to deposit it in the Laboratory on 13th October, 2006 or that the same remained with him safe in custody. The un-exhibited copy of the Malkhana on record also does not depict that after 28th September, 2006 when the samples were sent second time to the Laboratory, were ever received in the Malkhana and re-sent on 12th October, 2006. There is a reference in letter No.49637 of Superintendent of Police, Kangra dated 26th September, 2006 as shown in Ext.PW- 12/B that the samples were being sent for analysis through Constable Ranjit Singh (PW-10). Interestingly, its copy is on un- exhibited record. According to this letter, the samples were sent through the said Constable to CFSL, Chandigarh on 26th September, 2006. One sample was having three seal impressions of “A” and two seals of “A-1” and the second was having three seal impressions “A” and two seals of “S”, whereas letter says that both the samples were having three seals of “A” and “S”. Further, the entry in the Malkhana register does not show that the samples were drawn to send it for analysis on 26th September, 2006, but there is an entry dated 28th September, 2006 that the case property deposited in the Malkhana was having three/three seals of “A” and “S”. The matter does not end here, as PW-9 aforesaid also stated that the samples which were sent for analysis vide RC Ext.PW-9/A were having the seal impressions of “A” and “S”, but document Ext.PW-9/A only depicts that the samples were having seal impression “A” thereon which were sent for analysis to the Laboratory alongwith sample of seals “A” and “S”. Therefore, against the above background/facts, I do not find any evidence worth the name that the chain was complete - 7 - and as to where the samples remained with effect from 2nd October, 2006 to 12th October, 2006. Therefore, it is difficult to admit that the link in this case is complete and samples analysed could not be linked with the recovery. Thus, the prosecution is not able to establish that the samples aforesaid could not have been tampered with. It is obligatory on the part of the prosecution to prove by leading a cogent evidence, that right from the time of recovery the samples alongwith seals remained intact till its examination in the Laboratory, to link it with the recovered stuff from the accused. Since this link is missing, the appellant is legally entitled for its benefit. Also, I find that the report of the Analyst Ext.PW- 12/B whereby it has been opined that the samples examined in the Laboratory were of “poppy-straw” but it does not conform with the definition of “opium-poppy” or in any case “poppy-straw” under the Act. For that reason the definition of “poppy-straw” and “opium poppy” given in the Act requires consideration and can be usefully reproduced as under: “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__ (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 - 8 - and which the Central Government may, by notification in the Official Gazette, declare to be “opium poppy” for the purposes of this Act.” The above referred definitions came under scrutiny by the Division Bench of this Court in Rajiv Kumar alias Guglu’s case (supra) and it was observed as follows: “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.” In Rajiv Kumar alias Guglu’s case (supra) the Chemical Examiner was also examined in this Court. Two tests were conducted by him to ascertain whether the stuff contained meconic acid and morphine, did 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 could be extracted and which the Central Government may have notified to be the “opium poppy” for the purposes of the Act. The report of the Chemical Examiner in that case was that the stuff contained the contents of “poppy husk”, which term is similar to the term “poppy straw” and against this back ground it was held that this was not enough - 9 - evidence to hold that the stuff recovered from the appellant, the sample of which was analysed by the Chemical Examiner, was of “poppy straw”. In the instant case, the report of Examiner Ext.PW- 12/B states that various tests were conducted to which he did not give its details but the result of examination reads as under: ‘Various Laboratory tests such as colour tests and chromatographic analysis were carried out with the exhibits A-1 and A-2 under reference which indicated the presence of morphine, codeine, thebaine, papaverine, marctone and meconic acid in them. The result thus obtained have been analysed as given below:- Exhibit A-1 & A-2 are samples of “poppy straw”’. In note 3 appended to the report says that reference to the procedure(s) used: (i) Recommended methods for testing opium/crude Morphine” Manual for use by National Narcotic Laboratories, United Nations, New York, 1987. Report of Examiner in this case found that the samples contained above substances some of which are notified psychotropic substances, but its percentage, concentration and species from which these were derived have not been given in the report. The recommended method as appended with result must conform to the definition under the Act. In fact, the accused is charged with positive allegation that he was having “poppy straw” in his possession. If the report of the Chemical Examiner is looked into, it failed to indicate that 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 poppy” for the purposes of the Act. Therefore, the report Ext.PW-12/B cannot be - 10 - used as enough evidence to hold that the stuff recovered was of “poppy straw” as opined by the Chemical Examiner. In view of what has been stated hereinabove, I hold that the stuff allegedly recovered from the appellant was not proved to be “poppy straw” within the meaning of the Act and further the link evidence in this case is not complete. Therefore, the appellant is not liable for conviction and sentence for the offence charged against him. Consequently, the appeal is accepted. The judgment of conviction and sentence passed by the learned trial Court under Section 15 (b) of the Act, against the appellant is hereby set aside. The appellant, who is in Jail serving sentence, be set at liberty forthwith, if not required in any other case. The Registry is directed to send the release warrant of the appellant to the jail authorities concerned immediately. Send down the record. February 25, 2010. (Surinder Singh),J. (rc)