State of H.P. vs Ram Achal Tripathi

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 22.11.1999, whereby the learned Sessions Judge acquitted the accused of having committed an offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ''Act'').

Briefly stated the facts of the case are that on 29.5.1999 at about 4.00 P.M., Head Constable Ram Singh was checking Bus No. UP-07B-8892, which was coming from Paonta Sahib towards Dehradun. The accused was sitting on seat No. 17. He held a cloth bag between his legs. From this cloth bag, two plastic packets were recovered. These contained Poppy Husk, which on weighment was found 2 kgs. Two samples of 10 gms. each were drawn and then the samples and the bulk were sealed with seal ''R'' and taken into possession. Rukka was sent for registration of the case. Thereafter, the accused was arrested and tried. After trial, he has been acquitted, hence the present appeal.

The learned trial Court has acquitted the accused on various grounds, but we need not go into other aspects of the case since in our opinion, the report of Chemical Examiner itself does not show that any offence has been committed by the accused. According to the report Ext.PE, in the sample sent Meconic Acid was present and therefore the examiner was of the opinion that the exhibit contains contents of Poppy Husk.

A Division Bench of this Court in Rajiv Kumar alias Guglu v. Sate of H.P., Latest HLJ 2008 (HP) 247, held as follows:

For appreciation of the argument of the learned Counsel, 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 ready reference.

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 there from.

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 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 along with 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 the present case, as is clear from the 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 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.

In the present case also the report only shows that Meconic Acid was present. There is no finding that the seized substance belongs to the species Papaver somniferum L. No other notification has been produced on record to show that the plants of other species from which opium can be extracted, have been notified. Therefore, it was incumbent upon the examiner to have opined whether the plant belongs to Papaver somniferum or not. In the absence of any such opinion the accused cannot be said to have committed any offence.

In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.