The division judge bench of Justice B.R. Gavai and Justice C.T. Ravikumar of the apex court in the case of State of Himachal Pradesh Vs Nirmal Kaur @ Nimo & Ors held that once it is established that the seized ‘poppy straw’ tests positive for the contents of ‘morphine’ and ‘meconic acid’, no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 Act.
BRIEF FACTS
The factual matrix of the case is that while patrolling police officials were informed that the respondent is indulged in the illicit trading of the ‘poppy straw’. During search huge quantity of the ‘poppy straw’ was found. Thereafter, the accused got arrested. The samples were sent to the Chemical Examiner,who opined that the samples contained contents of ‘poppy husk’. After completion of the investigation, the respondent was charged with the offence punishable under Section 15(c) of the 1985 Act for possessing commercial quantity of ‘poppy straw’. The respondent pleaded not guilty and claimed to be tried. At the conclusion of the trial, the trial court found the respondent guilty and convicted and sentenced her to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and, in default of payment of fine, to undergo rigorous imprisonment for a further period of two years.
The high court held that tests conducted by the Chemical Examiner to ascertain whether ‘meconic acid’ and ‘morphine’ were present in the sample stuff, were not enough to reach the conclusion that the stuff was, in fact, ‘poppy straw’. Therefore, the high court set aside the order of conviction and sentenced passed by the trial court.
The learned counsel appearing on behalf of the state has contended that as per the Article 47 of the Indian Constitution, the state is duty bound to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. It was further submitted that the High court wrongly relied upon the judgment titled Amarsingh Ramjibhai Barot v. State of Gujarat. It was also submitted that the two tests which are conducted by the appellant are the only tests which are recommended by the United Nations. It is therefore submitted that the finding of the High Court that these two tests are not sufficient to reach to a conclusion that the species belong to ‘papaver somniferum L’ and as such, is not punishable under Section 15 of the 1985 Act, does not lay down a correct proposition of law.
The learned counsel appearing on behalf of the state has relied upon the judgment titled State of M.P. and Others v. Ram Singh, Swantraj and Others v. State of Maharashtra, and NEPC Micon Limited and Others v. Magma Leasing Limited.
The learned counsel appearing on behalf of the respondent has contended that the unless any other species of ‘papaver’ from which ‘opium’ or any ‘phenanthrene alkaloid’ can be extracted is notified by the Central Government, the same cannot be considered to be ‘opium’ for the purpose of the 1985 Act. It is submitted that, as such, unless the prosecution proves that the genus of the material seized was a species of ‘papaver somniferum L’, theconviction could not be sustained. It is therefore, submitted that no interference would be warranted with the judgment of the High Court.
COURT’S OBSERVATION
The hon’ble apex court held that if the view as taken by the High Court is to be accepted, a person who has been found contravening the provisions of the 1985 Act and dealing with a contraband material which has been found in the Chemical Examiner’s report to contain ‘morphine’ and ‘meconic acid’, would escape the stringent provisions of the 1985 Act. The said could never have been the intention of the legislature. The court is of the view that if the view as taken by the High Court is to be accepted, the same would frustrate the object of the Act and defeat its very purpose. The court further held that the view that the High Court was not justified in holding that, even after the Chemical Examiner’s report establishes that the contraband contains ‘meconic acid’ and ‘morphine’, unless it was established that the same was derived from the species of ‘papaver somniferum L’, conviction under Section 15 of the 1985 Act could not be sustained.
CASE NAME- State of Himachal Pradesh Vs Nirmal Kaur @ Nimo & Ors
CITATION- CRIMINAL APPEAL NO. 956 OF 2012
CORUM- Justice B.R. Gavai and Justice C.T. Ravikumar
DATE- 20.10.22
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