Deepak Gupta, J
1. An interesting question which arises in this appeal is- âWhat is âopium poppyâ, âopium derivativeâ, âpoppy strawâ and âopiumâ within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the âAct).â
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:-
 â2(xv) âopiumâ 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) âopium derivativeâ 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, thebaine 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) âopium poppyâ 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) âpoppy 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) âpoppy straw concentrateâ means the material arising when poppy straw has entered into a process for the concentration of its alkaloids.â
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:-
â8. 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 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 âpoppy strawâ, 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.â
Therefore, what was held by this Court was that before coming to the conclusion that the stuff is poppy straw which means all parts (except seeds) of the opium poppy in any form, it must be shown that these parts belong to the plant of the species of papaver, somniferum-L or the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted and which the Central Government has notified to be opium poppy.
4. Another Division Bench of this Court in Daulat Ram vs. State of H.P., (2007) 2 Shim LC, 282 was dealing with a case where the accused was alleged to have indulged in the sale of opium. This Court after discussing the definition of opium in Section 2(xvii) held as follows:-
â8. From a bare reading of the definition of opium, it is clear that âopiumâ means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine.
9. In the present case, report of the Chemical Examiner Ex. PR says that the samples were tested for meconic acid and morphine. Report does not say that the stuff was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent.â
5. In this case also reliance was placed upon the judgment of Apex Court in Amarsingh Ramjibhai Barot vs. State of Gujarat, (2005) 7 Supreme Court Cases 550.
6. The third case of this Court which is relevant for the case in hand is Dula Ram v. State of Himachal Pradesh, 2010 (94) AIC 299 , which again related to an offence under Section 15 of the Act. The Court after discussing the definition of poppy straw and opium poppy held as follows:
â17. Report Ext. P.W.-17/E of the Chemical Examiner shows that the Chemical Examiner conducted tests, one for finding whether the stuff contained meconic acid, morphine, codeine and papaverine. The tests yielded positive result. On the basis of these results, the Chemical Examiner gave the report that the samples were of poppy straw. He did not conduct any test to ascertain if the straw was part/parts of any of the plants referred to in definition 2(xvii) of the Act, reproduced hereinabove.â
7. Thereafter relying upon the judgment in Rajiv Kumar alias Guglu v. State of H.P., the Court went on to hold as follows:-
â21. We have considered the submission and also perused the report, Ex. PW-17/E. The only difference in this report, Ex. PW-17/E, and the report which had been relied upon by the prosecution in Rajiv Kumars case (supra) is that in the present case the Chemical Examiner conducted tests for the presence of codeine and papaverine, in addition to morphine and meconic acid, tests for which were conducted in Rajiv Kumars case.
22. We have consulted The New Encyclopaedia Britannica, 15th Edition, to ascertain the meaning and source of âcodeineâ and âpapaverineâ.
23. âCodeineâ, as per Volume II, of the aforesaid Encyclopaedia, is methylmorphine, naturally occurring alkaloid of opium and the methyl derivative of morphine. The meaning/explanation further reads that codeine may be extracted from opium, the dried milk exudates of the unripe seed capsule of opium poppy (Papaver somniferum), but most of the codeine used in the drug industry is produced from morphine. Term âPapaverineâ as such is not defined or explained in the said Encyclopaedia, but according to Volume VII, while explaining term
âPapaveraceaeâ, it has been mentioned that morphine, heroin, codeine and papaverine are the derivatives of opium, which (opium) is derived from Papaver somniferum..
24. The Encyclopaedia Britannica, while explaining the aforesaid terms, âcodeineâ and âpapaveraceaeâ, does not say that codeine or papaverine are derived from the opium obtained from a plant of species of Papaver somniferum-L. To fall in the definition of âopium strawâ, the straw has to be of opium poppy of a plant of the species of Papaver somniferum-L, or any plant of a papaver species, notified by the Central Government in the Official Gazette. Report Ex. PW-17/E does not even say that morphine, codeine, papaverine and meconic acid found by the Chemical Examiner, in the examined stuff, were part of opium obtained from a plant of Papaver somniferum-L species, leave alone his specifically saying that the stuff was of a plant of the aforesaid species nor has he said that the same were derivatives of opium obtained from a plant of any other species of Papaver, notified by the Central Government in the Official Gazette, within the meaning of sub-clause (b) of Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. Hence, the submission made by the learned Additional Advocate General that the report, Ex. PW-17/E, is different in its contents from the report that was the subject matter of Rajiv Kumars case (supra), is rejected.â
8. At this stage it would also be relevant to refer to the judgment of the Apex Court in Amarsingh Ramjibhai Barot vs. State of Gujarat, (2005) 7 Supreme Court Cases 550, wherein the Apex Court was dealing with a case of opium. The FSL report indicated that the substance recovered from the accused was âopium as described in the NDPS Act.â Thereafter, the Apex Court made reference to Sections 2(xv) and 2(xvi) and held as follows:-
â14. There does not appear to be any acceptable evidence that the black substance found with the appellant was âcoagulated juice of the opium poppyâ and âany mixture, with or without any neutral material, of the coagulated juice of the opium poppyâ. FSL has given its opinion that it is âopium as described in the NDPS Act.â. That is not binding on the court.
15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substances recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to âopium derivativeâ within the meaning of Section 2(xvi)(e). Clause (a) of Section 2(xi) defines the expression âmanufactured drugâ as:
â2. (xi) âmanufactured drug means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) * * *
All âopium derivativesâ fall within the expression âmanufactured drugâ as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was âmanufactured drugâ within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the office proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of âmanufactured drugâ.
9. A reference can also be made to the latest judgment of the Apex Court in Harjit Singh vs. State of Punjab (2011) 4 Supreme Court Cases 441, wherein, after discussing the definition of opium in the NDPS Act, the Apex Court held as follows:-
â15. Opium is essentially derived from the opium poppy plant. The opium poppy gives out a juice which is opium. The secreted juice contains several alkaloid substances like morphine, codeine, thebaine, etc. Morphie is the primary alkaloid in opium..
16. Opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. Thus, it can be identified without subjecting it to any chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary.â
10. Opium poppy and poppy straw have commonly been used in India as intoxicants and pain killers since ancient times. Poppy straw is less toxic and means all the parts (except seeds) of the plant of opium poppy in whatever form. Poppy straw concentrate is a material which is formed when poppy straw is subjected to a process which concentrates its alkaloids. Opium is the air-dried milky exudation obtained from the excised unripe fruits. Opium is smoked as an intoxicant in India and many Asian countries. Opium is also used for the production of morphine, codeine, narcotine, thebaine, papaverine and many other alkaloids. These alkaloids are toxic in nature and extremely habit forming. One of the bye products of opium is heroin or dimorphine. The seeds of the opium plant contain no opium and are used in various cuisines and are good source of energy.
11. According to Mr. Vivek Thakur, learned Additional Advocate General, opium can only be extracted from the papaver somniferum and not from any other species. On the other hand, Mr. Anup Chitkara, learned Amicus Curiae submits that Opium can be extracted not only from papaver somniferum but from various other species such as papaver setigerum, papaver rhoeas, papaver bracteatum etc. The argument of Mr. Vivek Thakur, learned Additional Advocate General, is that since opium can only be extracted from papaver somniferum, once the scientist opines that the stuff is opium or poppy straw then there is no need to further certify that the plant belongs to the papaver somniferum species.
12. On the other hand, Mr. Anup Chitkara, Amicus Curiae submits that the Legislature in its wisdom has in Section 2(xvii) clearly lays down that opium poppy means the plant of the species Papaver somniferum and 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. His contention is that this itself indicates that opium can be produced from the other species of papaver genus also and therefore, he submits that it is incumbent upon the Chemical Analyst to test and find out that the plant out of which this material was taken belonged to the species papaver somniferum.
13. Papaver genus is a very big genus and has more than 80 species out of which papaver somniferum is the one. Out of these, only two species contain morphine. These are papaver somniferum and papaver setigerum. Another species papaver rhoeas contains a substance named rhoediane. The said substance is only a mild sedative. This plant is grown mainly in Egypt. Opium poppy and opium contain many alkaloids. As per the scientific data placed before us, as many as 25 alkaloids have been isolated from opium. The main five alkaloids are morphine, codeine, thebaine, narcotine and papaverine. From the material, which is placed on record by the State, it appears that it is only the extract of the opium poppy (papaver somniferum) which contains all these five alkaloids, in sufficient amounts to make it commercially viable to extract opium. On this basis Mr. Vivek Thakur, urges that once the scientist come to the conclusion that the stuff is opium or poppy straw it is not necessary for the Chemical Analyst to further certify that it is an extract of papaver somniferum. This argument may at first blush seem attractive, but the Courts and the Laboratories when they deal with cases under the Act have to decide whether the stuff which is seized is contraband within the meaning of the Act or not.
14. The Legislature in its wisdom has defined opium poppy to mean the plant of the species papaver somniferum and the plant of any other species of papaver from which opium or any phenanthrene alkaloid can be extracted and which by notification is declared to be opium poppy. Therefore, opium poppy includes only the following: (i) the plant of the species papaver somniferum and the plant of any other species of papaver from which opium or any phenanthrene alkaloid can be extracted and which has been notified by the Central Government to be opium poppy. Thus, the Legislature in its wisdom has decided to include within the ambit of opium poppy not only plants of the species papaver somniferum but also any other plants belong to the papaver genus and from which either opium or any phenanthrene alkaloid can be extracted. In the latter case there must be a notification declaring the said plant to be opium poppy. Till date there is no notification issued by the Central Government, therefore, what we have to consider at present is only the first part of the definition which in no uncertain terms lays down that opium poppy is the plant of the species papaver somniferum and no other plant.
15. Once we have come to this conclusion the same definition of opium poppy has to be read in the definition of poppy straw which also clearly lays down that poppy straw is all parts (except seeds) of opium poppy. Therefore, we are of the considered view that the judgment in Rajiv Kumar alias Guglu vs. State of H.P., (2008) 1 Shim L.C. 168 does not require reconsideration.
16. Coming to the definition of opium under Section 2(xv), clauses (a) and (b) both clearly lay down that the juice, whether pure or mixed as the case may be, is the juice of the opium poppy. Therefore, while dealing with this definition also, the Chemical Analyst must clearly certify whether the juice is of the plant opium poppy or not. As such the judgment in Daulat Rams case also lays down the correct law and does not require reconsideration.
17. The Apex Court in Harjit Singhs case (supra) has clearly held that in case the offending material falls in clause (a) of Section 2(xv) then it does not matter whether the preparation contains less or more than 0.2% of morphine. However, if this substance is a mixture, falling under clause (b) then, it must be certified that it contains morphine exceeding 0.2%. In case this is not so, the mixture cannot be treated to be contraband within the meaning of the Act. However, if the stuff is coagulated juice of opium poppy alone and not a mixture then it is not necessary to certify that it should contain more than 0.2% morphine.
18. If any contraband contains more than 0.2% morphine even if it does not fall within the definition of opium poppy, poppy straw or opium it would be an opium derivative within the meaning of Section 2(xvi). Phenanthrene alkaloids, namely, morphine, codeine, thebaine under clause (c) of Section 2(xvi) and their salts and are also opium derivatives. Therefore, if the Chemical Analyst comes to the conclusion that the stuff is a phenanthrene alkaloid, namely, morphine, codeine, thebaine or their salts then this would make the stuff opium derivative and such stuff would be contraband within the meaning of Section 2(xvi) of the Act.
19. Similarly, if the Chemical Analyst comes to the conclusion that stuff is diacetylmorphine or diamorphine or heroin as laid down in clause (d) and its salt then it is a opium derivative under Section 2(xvi). All other preparations containing more than 0.2% morphine or containing any amount of diacetylmorphine/heroin are also opium derivatives within the meaning of clause (e) of Section 2(xvi) of the Act.
20. In Amarsingh Ramjibhai Barots case (supra) when the Apex Court found that anhydride morphine was 2.8% the substance was considered to be opium derivative falling within the sweep of Section 2(xvi)(e).
21. Therefore, though we agree with the final conclusion given by a Division Bench of this Court in Dula Rams case that the stuff in question was not poppy straw, we find that though the Division Bench relied upon the judgment in Amarsingh Ramjibhai Barots case, it did not consider the entire import of the said judgment. In Amarsingh Ramjibhai Barots case, the Apex Court clearly held that even if the substance was not opium since there was 2.8% anhydride morphine it was a manufactured drug within the meaning of Section 2(xi) of the Act, which reads as follows:- â2(xi) âmanufactured drugâ means-
(a) all coca derivatives, medicinal cannabis opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug.â
22. All opium derivatives and poppy straw concentrates are manufactured drugs within the meaning of Section 2(xi) of the Act. When manufactured drug is illegally kept, manufactured or sold the offence is one under Section 21 of the Act. As already held by us above, whenever there is phenanthrene alkaloid, namely, morphine, codeine, thebaine and their salts, the stuff in question is an opium derivative. Codeine is dealt at Serial No. 28 of the Table specifying small quantity and commercial quantity. Morphine is dealt at Serial No. 77 and thebaine at Serial No. 120. Therefore, in case the Chemical Analyst in his report indicates that the quantity of codeine, morphine or thebaine is more than the minimum quantity prescribed under the Table, then even if the stuff is not opium poppy or poppy straw, the Court must consider whether it is an opium derivative and the quantity is one which constitutes an offence. This aspect of the matter has not been dealt with in Dula Rams case and is explained accordingly.
23. Opium derivatives are dealt with under Item No.93 and separate quantities are prescribed for opium derivatives. These also must be looked into. Therefore, we conclude by holding that in cases relating to opium, poppy straw and opium poppy the Chemical Analyst must come to the conclusion that the product has come from papaver somniferum plant. However, in cases relating to poppy straw concentrate and opium derivatives it is not necessary to give such a finding.
24. Section 15 of the Act lays down the punishment for poppy straw. In cases falling within the purview of Section 15 it would be necessary for the Chemical Analyst to clearly certify that the substance is the product of papaver somniferum plant. Similarly, in cases of offences falling under Section 18 of the Act, which relates to opium poppy and opium, it would be necessary for the Chemical Analyst to come to the conclusion that the product is that of papaver somniferum plant. However, in cases of offence falling under Section 21 of the Act i.e. relating to manufactured drug such as opium derivative and poppy straw concentrate it will not necessary for the Chemical Analyst to certify that the product is that of papaver somniferum plant.
25. The present case relates to opium falling within Section 18 of the Act. The accused was alleged to have been found in possession of 50 grams of opium. The report of the Chemical Analyst is as follows:-
âTest for meconic acid: Positive Test for morphine: Positive General observation of Chemicals: I am of the opinion that the exhibit contains the contents of opium.â
26. Keeping in view the above discussion, it is apparent that this report is not sufficient to convict the accused. Only things found positive are meconic acid and morphine. Even the percentage of morphine has not been given. It has also not been stated that the contraband was the product of the papaver somniferum plant. On this ground alone the accused has to be acquitted and therefore, the appeal of the state is dismissed. Bail bonds are discharged. We place on record our appreciation for the valuable assistance rendered by Mr. Vivek Thakur, learned Additional Advocate General and Mr. Anup Chitkara, learned Amicus Curiae.