A conviction for possession of contraband under the NDPS Act cannot be sustained when there are material contradictions in the testimonies of official witnesses, independent witnesses have turned hostile, and the chain of custody of samples is not verified during trial, creating reasonable doubt regarding the prosecution's case.

Vivek Singh Thakur, Judge

Appellants, in both these appeals, have preferred these appeals against common judgment dated 27.5.2009 passed by Special Judge-II, Sirmaur, District at Nahan in Sessions Trial No. 2-N/7 of 2008, titled as State of Himachal Pradesh Vs. Dula Ram and Another, in case FIR No. 365/2007, dated 30.10.2007, registered in Police Station Paonta Sahib, District Sirmour, H.P. under Section 15 of the Narcotic Drugs and Psychotropics Substances Act (for short “NDPS Act”), whereby appellants, who are co-convict have been convicted for commission of offence punishable under Section 15 of the NDPS Act and have been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of ₹1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of 1 year.

Both these appeals preferred by the appellants were allowed by co-ordinate Division Bench of this High Court vide judgment dated 15th December, 2009, mainly on the ground that report Ex. PW-17/E of chemical examiner, in view of judgment passed by this High Court in Rajiv Kumar alias Guglu Vs. State of H.P. , HLJ 2008 (HP) 247, was not considered to be a conclusive report to prove that contraband alleged to be recovered from the appellants was poppy straw/opium poppy. It is apt to record that on similar lines in another judgment dated 20.12.2022 passed in Nirmal Kaur @ Nimmo and others Vs. State of H.P. for similar grounds, accused Nirmal Kaur and others were acquitted by the Trial Court by referring the reasons in consonance with Rajiv Kumar’s case.

The aforesaid judgment in Nirmal Kaur’s case was assailed by the State of Himachal Pradesh by filing Cr. Appeal No. 956 of 2012, which was decided on 20.10.2022 and judgment of acquittal passed by this High court was set aside and matter was remanded for deciding afresh in accordance with law laid down by the Apex Court in State of Himachal Pradesh Vs. Nirmal Kaur @ Nimmo and others , 2022 (15) Scale 347.

In present appeals, respondent-State preferred Cr. Appeal No. 958 of 2012, titled as State of Himachal Pradesh Vs. Dula Ram and Cr. Appeal No. 959 of 2012, titled as State of Himachal Pradesh Vs. Angrejo Devi, before the Supreme Court, against acquittal of appellants vide judgment dated 15th December, 2009 passed by co-ordinate Division Bench of this Court, which was heard and decided by the Apex Court vide order dated 23.11.2022, in the following terms:-

“1. Leave granted in SLP (Crl) No. 761/2014.

2. The High Court basically allowed the appeals on the ground that the prosecution has failed to establish that the seized material is not the genesis of a plant of Papaver somniferum L or any other plant, which is notified by the Central Government under Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’).

3. On a reference, this Court in State of Himachal Pradesh v. Nirmal Kaur alias Nimmo and Others, reported in 2022 SCC Online SC 1462, has decided the issue and it has been held that once it is found that the seized material contain ‘morphine’ and ‘meconic acid’ it is sufficient to establish that the seized material comes within the definition of Section 2(xvii) of the NDPS Act.

4. In that view of the matter, the impugned judgments and orders are quashed and set aside and the cases are remitted back to the High Court to consider the same afresh, in accordance with the judgment of this Court rendered in Nirmal Kaur alias Nimmo and Others (supra).

5. The sentence imposed on the respondents herein are suspended till the High Court decides the matters on merits.

6. The appeals are allowed in the aforesaid terms.

7. Pending application(s), if any, shall stand disposed of.”

In aforesaid facts, these appeals has to be decided once again, by keeping in view the law laid by the Supreme Court.

As per prosecution story on 30.10.2007, Police party headed by PW-17 Narveer Singh Rathore, consisting of PW-3 HC Partap Singh, PW-4 HC. Ra