Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1081

SUPREME COURT OF INDIA
B.R. GAVAI, C.T. RAVIKUMAR, JJ.
State of Himachal Pradesh – Appellant
Versus
Nirmal Kaur @ Nimmo and Others – Respondents
Criminal Appeal No. 956 of 2012
Decided On : 20-10-2022

Advocates appeared:
For the Appellant(s) : Mr. K. Parameshwar, Adv. (A.C.) Mr. M.V. Mukunda, Adv. Ms. A. Sregurupriya, Adv. Ms. Arti Gupta, Adv. Mr. Abhinav Mukerji, AOR Mrs. Bihu Sharma, Adv. Mr. Akshay C. Shrivastava, Adv. Mr. Pratishtha Vij, Adv
For the Respondent(s): Mr. Rajendra Sahu, Adv. Mr.Rishabh Sahu, Adv. Ms. Hema Sahu, Adv. Mr. C. L. Sahu, AOR Mr. K.M. Nataraj, ASGI Mr. Sharath Nambiar, Adv. Mr. Vatsal Joshi, Adv. Mr. Chitransh Sharma, Adv. Mr. Nakul Chengappa K.K., Adv.

IMPORTANT POINTS
(1) Particularization of species of contraband recovered – Once a Chemical Examiner establishes that the seized ‘poppy straw’ indicates positive test for contents of ‘morphine’ and ‘meconic acid’, it is sufficient to establish that it is covered by sub-clause (a) of Clause (xvii) of Section 2 of NDPS Act, 1985 and no further test would be necessary for establishing that seized material is a part of ‘papaver somniferum L’.
(2) Rule of Purposive Interpretation – Penal provisions like all other provisions of other statutes are to be construed according to legislative intent as expressed in enactment.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 15 and 2(xvii)(a) – Particularization of species of contraband recovered – ‘Poppy straw’ has been defined to mean all parts of ‘opium poppy’ after harvesting, whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom – However, said definition excludes seeds – As such, ‘poppy straw’ would mean all parts of ‘opium poppy’ except seeds – For bringing home guilt of accused within ambit of Section 15 of 1985 Act, it will be necessary to establish that seized material collected is any part of ‘opium poppy’ except seeds – As such, what would be required to establish is that genus of seized material is ‘opium poppy’ as defined under Clause (xvii) of Section 2 of 1985 Act. (Paras 26 and 29)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 2(xvii)(a) and 15 – Particularization of species of contraband recovered – Once a Chemical Examiner establishes that the seized ‘poppy straw’ indicates positive test for contents of ‘morphine’ and ‘meconic acid’, it is sufficient to establish that it is covered by sub-clause (a) of Clause (xvii) of Section 2 of 1985 Act and no further test would be necessary for establishing that seized material is a part of ‘papaver somniferum L’ – No other test would be necessary for bringing home guilt of accused under provisions of Section 15 of 1985 Act – High Court was not justified in observing that Chemical Examiner’s report, in alternative, should establish that seized material is a part of any other species of ‘papaver’ from which ‘opium’ or any ‘phenanthrene alkaloid’ could be extracted and which has been notified by Central Government as ‘opium’ for the purpose of 1985 Act – Matter remanded to High Court for consideration afresh. (Paras 89, 90, 91 and 93)
(C) Interpretation of Statute – Rule of Purposive Interpretation – An enactment has to be incorporated in such a manner which advances purpose of the Act rather than interpreting in such a manner which defeats purpose of the Act – Court can make a purposive interpretation so as to effectuate intention of legislature and not a purposeless one in order to defeat intention of legislators wholly or in part – It is duty of courts to accept a construction which promotes object of legislation – Construction made of any provision of Act must be to promote object of enactment to enable the machinery to deal effectively with persons involved in crime – Penal provisions like all other provisions of other statutes are to be construed according to legislative intent as expressed in enactment. (Paras 66, 68, 72, 78 and 80)
Facts of the case:
Following questions for consideration:
(i) Whether it is necessary to particularize species of the contraband recovered – poppy husk, poppy straw etc.?
(ii) So long as the prosecution proves that what was recovered was the sample of
poppy straw and whether it is necessary for the prosecution to bring in materials
to show as to what was the species of contraband recovered?”
Findings of Court:
Once it is established that the seized material contains ‘meconic acid’ and ‘morphine’, it will be sufficient to establish that it is derived from the plant ‘papaver somniferum L’ as defined in sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act.
Result : Appeal allowed.

Judgement Key Points

On the basis of international conventions, courts can make rulings that ensure compliance with international obligations and standards. These conventions often serve as a legal basis for interpreting domestic laws in cases involving international issues, such as trade, human rights, environmental protection, or narcotics regulation (!) . Courts may also hold that national laws must be consistent with the provisions of relevant international conventions, thereby influencing the outcome of cases where international commitments are involved (!) . Additionally, decisions may be guided by the principles and obligations outlined in these conventions to promote uniformity and cooperation in international legal matters (!) .

JUDGMENT :

B.R. Gavai, J.:--

1. A coordinate Bench of this Court, vide order dated 14th August 2018, has framed the following questions for consideration:

(i) Whether it is necessary to particularize the species of the contraband recovered – poppy husk, poppy straw etc.?

(ii) So long as the prosecution proves that what was recovered was the sample of poppy straw and whether it is necessary for the prosecution to bring in materials to show as to what was the species of the contraband recovered?”

2. Since the answer to the aforesaid questions have a bearing on a number of cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “1985 Act”), this Court, vide its order dated 14th August 2018, had requested Shri P.S. Narasimha, learned Senior Counsel (as he then was) to assist the court as amicus curiae. Shri K. Parameshwar, learned counsel was requested to assist Shri P.S. Narasimha. On the elevation of Hon’ble Mr. Justice P.S. Narasimha, Shri Parameshwar continued to assist this Court as amicus curiae.

Factual Background:

3. On 25th July 2003, when Sarbjeet Singh (PW-12) along with some other police officials were on patrolling duty at Haroli in Una District, he was informed by Constable Upnesh Kumar (PW-1) that the respondent-accused was indulging in the illicit trading of ‘poppy straw’ and that she had kept huge quantity of ‘poppy straw’ in the room where fodder for the cattle had been stacked.

4. After complying with the formalities as prescribed under the 1985 Act, a raiding party was formed and the premises of the respondent was searched. During the search, a bag containing 20 Kgs. of ‘poppy husk’ was found in the room meant for stacking fodder. Two samples each weighing 250 grams were separated and sealed. The respondent was arrested. While in police custody, the respondent made a disclosure statement that she had concealed nine more gunny bags of ‘poppy husk’ on the side of khad near Gurudwara Girgirga Sahib. Accordingly, eight gunny bags each containing 40 Kgs. of ‘poppy husk’ and one bag containing 30 Kgs. of ‘poppy husk’ were recovered. From each of these nine bags, two samples, each weighing 250 grams, were separated and sealed in separate parcels.

5. The samples were sent to the Chemical Examiner, who opined that the samples contained contents of ‘poppy husk’. After completion of the investigation, the respondent was charged with the offence punishable under Section 15(c) of the 1985 Act for possessing commercial quantity of ‘poppy straw’. The respondent pleaded not guilty and claimed to be tried. At the conclusion of the trial, the trial court found the respondent guilty and convicted and sentenced her to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and, in default of payment of fine, to undergo rigorous imprisonment for a further period of two years.

6. The respondent filed an appeal being Criminal Appeal No. 525 of 2004 before the High Court. During the course of hearing, the High Court was of the opinion that the tests conducted by the Chemical Examiner to ascertain whether ‘meconic acid’ and ‘morphine’ were present in the sample stuff, were not enough to reach the conclusion that the stuff was, in fact, ‘poppy straw’. Therefore, the High Court summoned the Chemical Examiner as a court witness. The High Court came to a conclusion that the two tests conducted by the Chemical Examiner to ascertain whether the samples contained ‘meconic acid’ and ‘morphine’ did not indicate that the stuff examined consisted of the parts of either the plant of the species of the ‘papaver somniferum L’ or a plant of any other pieces of ‘papaver’ from which ‘opium’ or any other ‘phenanthrene alkaloid’ can be extracted and which the Central Government had notified to be ‘opium poppy’ for the purposes of the 1985 Act. The High Court therefore held that the two tests cannot be sufficient evidence to hold that the stuff recovered from the respondent, the sample of which