IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 468 of 2001 Date of decision: 03.05.2011 __________________________________________________________ The State of H.P. .....Appellant. Vs. Avtar Chand alias Tara. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Himat Negi, Advocate vice Mr. Ajay Sharma, Adv. Justice V.K. Sharma, J (Oral) The State is in appeal against acquittal of the respondent (accused) for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') by the learned Additional Sessions Judge, Una, H.P. vide judgment dated 16.05.2001. 2. Factual matrix as noticed by the learned trial Court is as under. 3. On 26.8.2000, Head Constable Hoshiar Singh No. 182 of CIA Staff, Una along with Head Constable Kuldeep Kumar and other police officials was present at Mehatpur on Bhatoli road. In the evening he was informed by Constable Ranjit Singh that opium could be recovered from the possession of the accused who was running a Halwai shop at Mehatpur. An immediate raid was conducted by the police after joining independent witnesses Sanjiv Kumar and Bhupinder Singh. During the personal search of the accused and that of his shop nothing incriminating was recovered. A tin shed belonging to the accused adjoining to his shop was also searched but nothing was recovered from there also. The accused then is stated to have made a disclosure 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 statement under Section 27 of the Indian Evidence Act that 3-4 days back one Varinder Kumar alias Binder resident of Jakhera had handed over to him 2 envelops containing opium which he had concealed in the field after digging the earth behind his shop. He then is stated to have taken the police to the field about 10 yards away on the backside of his shop, dug the earth and brought out 2 envelops containing 275 grams and 365 grams opium. Samples of opium out of both envelops were drawn out and were confirmed to be of opium by the Chemical Examiner. As such the accused was challaned for the offence punishable under Section 18 of the Act. 4. On completion of investigation the accused was sent up to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 16 witnesses. 5. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein, he pleaded innocence and false implication. However, he did not lead any evidence in defence. 6. After hearing the parties, the learned trial Judge proceeded to acquit the accused. 7. We have heard the learned Senior Additional Advocate General for the appellant/State, learned counsel for the accused and gone through the records. 8. The gravamen of charge against the accused under Section 18 of the NDPS Act, was relating to contravention in relation to opium. Section 2 (iv) of the NDPS Act defines opium as under:- “(xv) “opium” means- (a) the coagulated juice of the 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;” 9. The samples of the alleged contraband recovered from the 3 accused were analyzed vide report Ex. PA, operative part whereof is as under:- 1. Date of Receipt in the Laboratory Lab. No. 1903/1 28-.8.2000 Lab No. 1903/2 28-8--2000 2. Weight (New weight) found in Laboratory. 11.5628 gms. 11.2179 gms. 3. Date of Conducting the test result of. 24.10.2000 24.10.2000 4. Qualitative test. Test for meconic acid= Positive. Positive. 5. Result of quantitative test Test for morphine= Positive. Positive. General Observation of Chemicals I am of the opinion that the both exhibits marked here as 1903/1 and 1903/2 contain contents of opium. 10. Thus, it is manifest that the contraband allegedly recovered from the accused was opined to “contain the contents of opium” as the tests for “meconic acid” and “morphine” were found to be “positive”. 11. In Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704, the Hon’ble Apex Court, has held as under vide paras 12, 14 and 15:- “12. Sections 17, 18 and 21 of the NDPS Act are intended to operate in different circumstances. Section 17 prescribes the punishment inter alia for possession of “prepared opium”; Section 18 prescribes the punishment inter alia for possession of “opium” and Section 21 deals with the punishment inter alia for possession of “manufactured drugs”. Each one of these terms has been defined in the NDPS Act. “Opium” is defined in Section 2 (xv) as: “2.(xv) “opium” means- (a) the coagulated juice of the 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;” 14. There does not appear to be any acceptable 4 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”. FSL has given its opinion that it is “opium as described in the NDPS Act”. That is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to “opium derivative” within the meaning of Section 2(xvi) (e). Clause (a) of Section 2(xi) defines the expression “manufactured drug” as: “2.(xvi) ‘manufactured drug’ means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) * * *” All “opium derivatives” fall within the expression “manufactured drug” as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was “manufactured drug” within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of “manufactured drug”. 12. Relying upon the case of Amarsingh Ramjibhai Barot, supra, a Division Bench of this Court in Daulat Ram vs. State of Himachal Pradesh, 2007 (2) Shim.LC 282, has held as under, vide paras 8, 9 and 10 of the judgment:- “8. From a bare reading of the definition of opium, it is clear that “opium” means coagulated juice of 5 opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine. 9. In the present case, report of the Chemical Examiner Ex.PR says that the samples were tested for meconic acid and morphine. Report does not say that the stuff was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent. 10. The Hon’ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 Supreme Court Cases (Cri) 1704,has held that where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy but simply expresses the opinion that the stuff is opium, as defined in the Narcotic Drugs and Psychotropic Substances Act, such a report is not acceptable and not binding on the Court. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent.” 13. When CTL report Ex. PA is considered in the light of the law laid down by the Hon’ble Apex Court, as followed by this Court in the aforesaid judgments, it is abundantly clear that the conclusion arrived at thereunder simply goes to show that the samples of the contraband allegedly recovered from the convict tested positive for meconic acid and morphine and were found to contain contents of opium. However, the report is not in accordance with the definition of opium contained in Section 2 (xv) of the NDPS Act, as the same is absolutely silent about the presence of “the coagulated juice of the opium” and “percentage of morphine” and as such cannot be relied upon to fasten criminality against 6 the accused for the offence for which he was charged. 14. In a similar case (Cr. Appeal No. 36 of 2001, State of Himachal Pradesh versus Dhian Singh, decided on 15.3.2011), we have taken the same view. 15. In view of the above, the appeal fails and is accordingly dismissed. 16. The appeal stands disposed of in the above terms. (R.B. Misra) Judge (V.K. Sharma) Judge May 3, 2011 (cr)