Surjit Singh, J.
1. Appellant Sawaran Singh has appealed against the judgment dated 11.6.2007 of learned Trial Court whereby he has been convicted of offences under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for fourteen years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo imprisonment for a further period of two years for offence under Section 15 of the Act and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/- in respect of offence under Section 18 of the Act.
2. Case of the prosecution, as per evidence on record, is like this. A telephonic message was received at Police Post, Darang from ASI Rattan Chand that near a place called Ghatasani his jeep No. HP-65-0192 had been hit by vehicle No. HR-10B-6477 and that the Driver of latter jeep had fled from the scene along with the vehicle after causing the accident and that the said vehicle had been driven towards Mandi. He also informed that the vehicle, which had hit his jeep, was a Tata Sumo.
3. The aforesaid information was entered in the Rojnamcha maintained at the Police Post, Darang. Copy of the entry is Ext. PA. On receipt of the said information, a police party headed by HC Pratap Singh laid a Naka. Tata Sumo, bearing registration No. HR-10B-6477, appeared at the site of Naka from Ghatasani side. It was signalled to stop by HC Pratap Singh and other members of the Naka party, but the Driver of the vehicle drove past the Naka breaking the barricade. Pratap Singh, HC then gave a ring to SHO, Police Station, Sundernagar informing him that the aforesaid vehicle had jumped the Naka despite signal. The call was attended by PW-15 Brijesh Sood, Inspector/SHO, Police Station, Sundernagar. He made an entry in the Rojnamcha. Copy of the entry is Ext. PF. Then he proceeded towards Lalit Chowk, Sundernagar to organize a Naka there. He was accompanied by a number of police officials, including ASI Rishi Raj. He armed himself with a pistol. One Constable named Devi Singh was given a .303 rifle along with 25 rounds. Naresh Kumar, HHC was given sten gun along with 30 rounds.
4. Vehicle No. HR-10B-6477 appeared at the site of Naka but did not stop, despite signal raised by PW-15 Brijesh Sood and other police officials accompanying him. The vehicle was chased by Brijesh Sood (PW-15) and other police officials in their vehicle bearing registration No. HP-33-8178. Signal and indications were given to the Driver of the aforesaid Tata Sumo to stop it but to no avail. Brijesh Sood fired three rounds from his service pistol, aiming at the tyres of Tata Sumo. Vehicle was still not stopped by its Driver.
5. Ultimately, the vehicle was overtaken at 'Kainchimor' (loop) at Slapper at a distance of about 20-22 kilometers from Sundernagar. Driver of Tata Sumo, finding it difficult to escape along with the vehicle, stopped it and ran away. He was given a chase but he succeeded in escaping, taking advantage of darkness. The present appellant was found sitting on the seat adjacent to that of the Driver. On search of the dicky of the vehicle, nine gunny bags containing poppy straw were found and one small bag containing opium was found in the pocket of a cover of one of the seats of the vehicle. Appellant was taken into custody. Attempt was made to associate residents of nearby villages, but it being an odd hour of the night, no witness was available.
6. Tata Sumo along with the appellant was then taken to Sundernagar and parked outside the Police Station. It was around 4.00 in the morning when Tata Sumo along with the appellant reached Sundernagar. Dy. S.P. Prem Chand (PW-4) was informed. He reached the spot. Scale and weights were arranged from PW-3 Anil Sood, a Shop Keeper. Poppy straw contained in nine bags weighed 195 kilograms and opium weighed 500 grams. Two samples each weighing 100 grams were taken from each of the nine gunny bags. All the samples were made into parcels and sealed with a seal that produced impression letter 'A' of English alphabet. Nine bags were also sealed with the same seal. Two samples each weighing 50 grams were taken out from the opium. They were also made into two parcels and sealed with the aforesaid seal. Bulk of opium was also made into a parcel and sealed with the same seal. Samples of poppy straw (one from each of the nine bags) and opium were sent to the Chemical Examiner, who vide reports Ext. PO and Ext. PP opined that the samples were of poppy straw and opium. Trial Court charged the appellant with the offences under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and on his pleading not guilty, put him on trial.
7. Prosecution examined 15 witnesses to bring the charge home to the appellant. It mainly relied upon the testimony of PW-2 Rishi Raj ASI and PW-15 Brijesh Sood to prove the interception of Tata Sumo vehicle and recovery of poppy straw and opium therefrom and the presence of the appellant in the said vehicle at the time of its interception. Prosecution also examined PW-1 Pratap Singh of Police Post, Darang to prove that Tata Sumo jumped Naka at Darang. To prove that the recovered stuff was poppy straw and opium, prosecution placed reliance upon reports Ext. PO and Ext. PP of the Chemical Examiner.
8. Appellant took the plea that the vehicle belonged to his brother Lakhbir Singh (PW-12) and that the latter had put the vehicle in the charge of a Driver named Satnam Singh and that the said Driver Satnam Singh telephonically informed Lakhbir Singh (PW-12) that the vehicle had met with an accident at Sundernagar and upon getting that telephonic information, his brother Lakhbir Singh asked him to go to Sundernagar and to get the vehicle released on Supurdari, but when he reached Sundernagar, he was arrested and framed in this case. Learned Trial Court believed the prosecution version, rejected the defence plea and convicted and sentenced the appellant, as aforesaid.
9. We have heard the learned Counsel for the appellant as also the learned Deputy Advocate General and gone through the entire evidence.
10. We find no reason to disbelieve the testimony of PW15 Brijesh Sood, SHO, Police Station, Sundernagar and PW-2 Rishi Raj, ASI, Police Station, Sundernagar who stated with one voice that they had organized a Naka at a chowk at Sundernagar, on getting an information from the Incharge, Police Post, Darang that a vehicle had jumped the Naka at Darang and proceeded towards Mandi. They testified that Tata Sumo, number of which had been intimated telephonically by PW-1 Pratap Singh HC of Police Post, Darang appeared at the site of Naka at 11.15 p.m. and it did not stop, despite their raising a signal for stopping it and so they chased it along with other police officials, in their vehicle bearing registration No. HP-33-8178, but the vehicle did not stop despite three rounds of pistol having been fired aiming at its rear tyres and ultimately the vehicle was overtaken at 'Kainchimor' (loop) of Slapper. They further stated that the Driver of Tata Tumo stopped it and escaped taking advantage of darkness, but the appellant, who was occupying the seat adjacent to that of the Driver, was overpowered and on search of the dicky of the vehicle, nine bags of poppy straw were found and a small bag containing opium was found from the pocket of cover of one of the seats of the vehicle.
11. Testimony of the two witnesses is corroborated by PW-1 Pratap Singh HC of Police Post, Darang, who stated that he received a telephonic message from ASI Rattan Chand about the Tata Sumo bearing registration No. HR-10B-6477 having hit jeep No. HP-65-0192 of the said ASI at a place called Ghatasani and the Driver having escaped towards Mandi in the vehicle. He further stated that he entered that information in the Rojnamcha, copy Ext. PA and organized Naka with the help of some other police officials at Darang and that around 10.10 p.m. a Tata Sumo bearing aforesaid registration number appeared from Jogindernagar side, but did not stop despite signals having been raised by him and went past breaking the Naka barricade. He also stated that he then gave a ring to S.H.O., Police Station, Sundernagar.
12. The defence plea is shown to be false from the fact that no suggestion was put to the Investigating Officer, namely, Brijesh Sood or PW-1 Pratap Singh, HC of Darang that the vehicle had not crossed the Naka on the night intervening 15th and 16th February, 2003. The defence plea is that the appellant went to Sundernagar on 15th February, 2003 after his brother Lakhbir (PW12) received a telephonic call from his Driver Satnam Singh that the vehicle had met with an accident at Sundernagar. A suggestion was put to PW-2 Rishi Raj, ASI that the appellant came to Police Station, Sundernagar to seek release of the vehicle on the date next following the date of accident. The date of accident was the night intervening 15th and 16th February, 2003. That means, according to the suggestion, appellant went to Police Station, Sundernagar on 16.2.2003. It was also suggested to PW-2 Rishi Raj that the appellant reached the Police Station at 2.00 p.m.. That means, he went to Police Station, Sundernagar, according to the defence plea, on 16.2.2003 at 2.00 p.m. This plea is falsified by the fact that the FIR of the case, Ext. PG, reached the Illaqua Magistrate on 16.2.2003 at 10.00 a.m. and in the FIR it is written that the appellant had been taken into custody on the night intervening 15th and 16th February, 2003 from the Tata Sumo, by which he was traveling. The defence plea is further falsified by the entries in the Rojnamcha maintained at Police Post, Darang, copy Ext. PA, per which the vehicle crossed the Naka laid at Darang around 10.10 p.m. Entry in the Rojnamcha at Police Station, Darang (copy Ext. PF) also gives a lie to the defence plea, because as per this entry, the information from Pratap Singh PW-1, HC of Police Post, Darang had been received at 10.15 p.m. on 15.2.2003 and thereafter, Naka was organized at Lalit Chowk, Sundernagar.
13. Learned Counsel for the appellant further submits that the reports Ext. PO and Ext. PP cannot be looked into for coming to the conclusion that the recovered stuffs were poppy straw and opium. He submits that the report Ext. PO pertaining to the samples of stuff found in nine bags does not show that the stuff formed parts of the opium poppy. Similarly, the report Ext. PP pertaining to alleged opium does not indicate that it was coagulated juice of opium poppy or it was mixture of coagulated juice with or without any neutral material containing more than 0.2% morphine. In support of his submission, he has placed reliance upon a judgment of the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat 2005 SCC (Cri) 1704 and two judgments of the Division Benches of this Court in Daulat Ram v. State of Himachal Pradesh 2007 (2) SLC 282 and Rajiv Kumar alias Guglu v. State of Himachal Pradesh latest HLJ 2008 (HP) 247.
14. Poppy straw, per its definition given in Section 2 (xviii) of the Act, 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 had been extracted therefrom. Opium poppy is defined in Section 2 (xvii) of the Act, which reads as follows:
(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 purpose of this Act.
15. Report Ext. PO of the Chemical Examiner shows that the Chemical Examiner conducted two tests, one for finding whether the stuff contained meconic acid and another for finding morphine. Both the tests yielded positive results. 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.
16. There was a report similar to Ext. PO in a case before a Division Bench of this Court, which comprises of both of us. In that case, the Chemical Examiner was summoned and examined to ascertain how did he came to the conclusion, on the basis of the test conducted for the presence of meconic acid and morphine, that the stuff was of poppy straw. Taking into consideration the statement, which the Chemical Examiner made and also the report, the Division Bench held as follows:
In the present case, as is clear from the statement to 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 spices of papaver somniferun- L or a plant 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, Ext. PW10/ 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 straw.
17. The aforesaid case is reported in latest HLJ 2008 (HP) 247 and its title is Rajiv Kumar alias Guglu v. State of H.P.
18. Coming to the report Ext. PP regarding the sample of alleged opium, the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat 2005 SCC (Cri.) 1704 has held:
where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy but simply expresses the opinion that the stuff is opium, as defined in the Narcotic Drugs and Psychotropic Substances Act, such a report is not acceptable and not binding on the Court. This implies that the report of the Scientific Expert has to specifically mention that either the stuff is coagulated juice of opium poppy or it is a mixture of such juice with some other material having morphine content in excess of 0.2 per cent.
19. Relying upon the aforesaid judgment of the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot (supra), a Division Bench of this Court (of which one of us, Surjit Singh, J. was a Member) in Daulat Ram v. State of Himachal Pradesh : 2007 (2) Shim.LC 282 has held that unless the report says that the stuff was coagulated juice or a mixture of coagulated juice with or without neutral material, containing morphine more than 0.2 per cent, it cannot be said that the stuff is in fact the opium.
20. In view of the above legal position, we find merit in the submissions of the learned Counsel for the appellant that the report Ext. PO and Ext. PP do not prove that the stuffs recovered from the appellant were poppy straw and opium. Consequently, the appeal is accepted. Judgment of the trial Court dated 11.6.2007 convicting and sentencing the appellant is set aside and the appellant is acquitted. He being in jail, serving the sentence awarded by the trial Court, is ordered to be released immediately, in case his detention is not required in any other case.