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2013 Supreme(HP) 1068
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANJAY KAROL, J.
Harbhajan Singh And Another — Appellant
Versus
State Of Himachal Pradesh — Respondent
Criminal Appeal No. 526 of 2005
Decided on : 17-06-2013
Advocate Appeared:
For the Appellant : N.K. Thakur and Mr. Ramesh Sharma, adv
For the Respondent:R.S. Verma, Mr. J.S. Guleria, Assistant Advocate
The interpretation of the Chemical Examiner's report and the sufficiency of legal evidence to prove the nature of contraband goods are crucial in establishing guilt under the NDPS Act.
Headnote:
NDPS Act - Conviction under Section 15-61 /85 - Summary of Acts and Sections: The court discussed the provisions of Section 15-61 /85 of the Narcotic Psychotropic Substances Act, 1985 and referenced judgments related to the definition of 'poppy straw' and 'poppy husk'. The interpretation of the Chemical Examiner's report and its relevance in proving the nature of the contraband goods were key in influencing the court's decision.
Fact of the Case:
The accused were convicted of possessing 5 kilograms of poppy husk based on police apprehension and chemical examination. The prosecution proved its case beyond reasonable doubt, leading to the conviction and sentencing of the accused.
Finding of the Court:
The court found that the prosecution failed to provide sufficient evidence to establish that the recovered substance was poppy husk, leading to the acquittal of the accused.
Issues: The key issue revolved around the interpretation of the Chemical Examiner's report and whether it provided conclusive evidence of the nature of the recovered substance.
Ratio Decidendi: The court's decision was primarily influenced by the interpretation of the Chemical Examiner's report and the lack of legal evidence to substantiate the prosecution's case.
Final Decision: The appeal was allowed, the judgment of conviction and sentence passed by the trial Court was set aside, and the accused were acquitted of the charged offence.
JUDGMENT :
Sanjay Karol, J.
Accused-appellants, hereinafter referred to as the accused, have assailed the judgment dated 9.12.2005, passed by learned Additional Sessions Judge, Una, District Una, H.P., in Sessions Trial No. 14 of 2004, whereby they have been convicted of the offence under the provisions of Section 15-61 /85 of the Narcotic Psychotropic Substances Act, 1985 (in short 'NDPS Act'), in reference to FIR No. 297 of 2003 dated 19.5.2003. The prosecution case, in brief, is that on 19.5.2013, the police party apprehended the accused and recovered 5 kilograms of poppy husk from their possession. Two samples of 200 grams each were taken out from the recovered stuff and sealed with seal impression 'S'. Remaining bulk was also sealed with the same seal. On 21.5.2003, one sealed sample parcel of poppy husk along with 'NCB forms' and specimen seal were sent for chemical examination. Keeping in view the Chemical Examiner's report and the investigation, accused were charged for the aforesaid offence.
2. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses. Whereas, the accused through their statements u/s 313 of the Code of Criminal Procedure have denied the prosecution case.
3. On analysis of the prosecution witnesses and material on record, learned Additional Sessions Judge, Una, has arrived at the finding that the prosecution has proved its case beyond reasonable doubt. Trial Court convicted both the accused and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- each and in default of payment of fine to further undergo simple imprisonment for two years each.
4. Inter alia on many other grounds, one important aspect which requires consideration is that on perusal of Ex. PK, it appears that 'NCB Form' was not filled in, on the spot. The Chemical Examiner has opined that on Chemical Examination the meconic acid was found positive and morphine was also found positive. In these circumstances, Chemical Examiner has opined that the contraband good so recovered was poppy husk.
5. In similar facts and circumstances, this Court (DB) has taken a view vide judgment dated 02.11.2007 passed in Cr. Appeal No. 295 of 2004 (Rajiv Kumar alias Guglu Versus State of H.P.) that the Chemical examination could not prove that the contraband goods recovered as poppy straw. The relevant paragraph of the aforesaid judgment is reproduced as below:-
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 on 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 s
