The substance in question must be proven to be derived from the specified plant species to be classified as opium, poppy straw, or opium derivative.

Per Deepak Gupta, J

1. An interesting question which arises in this appeal is- “What is “opium poppy”, “opium derivative”, “poppy straw” and “opium” within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’).”

2. To understand the issues raised before us and the rival contentions of the parities, it would be pertinent to refer to the definition of the opium, opium derivative, opium poppy, poppy straw and poppy straw concentrate in Sections 2(xv), 2(xvi), 2(xvii), 2(xviii) and 2(xix) of the Act, which reads as follows:-

“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:

2(xvi) “opium derivative” means-

(a) medicinal opium, that is, opium which has undergone the process necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts;

(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and

(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine;

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;

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; 2(xix) “poppy straw concentrate” means the material arising when poppy straw has entered into a process for the concentration of its alkaloids.”

3. First of all, we will come to the definition of Opium Poppy which is the base material from which poppy straw, poppy straw concentrate, opium and opium derivative can be prepared. Section 2(xviii) has been the subject matter of a decision of a Division Bench of this Court in Rajiv Kumar alias Guglu vs. State of H.P., (2008) 1 Shim L.C. 168. In this case the accused was charged with having committed an offence punishable under Section 15 of the Act, which relates to Poppy straw. The Division Bench held as follows:-

“8. 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.

9. 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 t