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"The High Court was also not justified in observing that the Chemical Examiner’s report, in the alternative, should establish that the seized material is a part of any other species of ‘papaver’ from which ‘opium’ or any ‘phenanthrene alkaloid’ could be extracted and which has been notified by the Central Government as ‘opium’ for the purpose of the 1985 Act", Court opined.
A Supreme Court Bench of Justice B.R. Gavai and Justice C.T. Ravikumar while allowing an appeal and setting aside the order of the High Court, opined that, once it is established that the seized material contains ‘meconic acid’ and ‘morphine’, it will be sufficient to establish that it is derived from the plant ‘papaver somniferum L’.
Court while commenting on the High Court's order stated, "We fail to understand as to how a Chemical Examiner could be asked whether the seized material was a part of any other species of ‘papaver’ from which ‘opium’ or any other ‘phenanthrene alkaloid’ could be extracted when there is no such species of ‘papaver’ which has been notified by the Central Government to be ‘opium poppy’ for the purpose of the Narcotic Drugs and Psychotropic Substances Act, 1985".
In the pertinent matter it was alleged that the accused indulged in the illicit trading of ‘poppy straw’ and that she had kept huge quantity of ‘poppy straw’ in the room where fodder for the cattle had been stacked. During the search, a bag containing 20 Kgs of ‘poppy husk’ was found in the room meant for stacking fodder. While 9 more bags were sized on the basis of the disclosure made by the respondent, However, the respondent pleaded not guilty and thus at the conclusion of trial by the Trial Court, was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/.
The same was challenged before the High Court, where the Court was of the opinion that the tests conducted by the Chemical Examiner were not enough to reach the conclusion that the stuff was, 'poppy straw’. Therefore, the High Court summoned the Chemical Examiner as a court witness. and had further held that the two tests cannot be sufficient evidence to hold that the stuff recovered from the respondent, the sample of which was analysed by the Chemical Examiner, was ‘poppy straw’. And that the prosecution had failed to prove the sample to be of ‘poppy straw’ within the meaning of the 1985 Act and therefore, the respondent was not liable to conviction and punishment for the offence described in and made punishable under Section 15 of the 1985 Act.
Therefore, there were two questions before the Court to consider:
(i) Whether it is necessary to particularize the species of the contraband recovered – poppy husk, poppy straw etc.?
(ii) So long as the prosecution proves that what was recovered was the sample of poppy straw and whether it is necessary for the prosecution to bring in materials
The Court thus opined, "...once a Chemical Examiner establishes that the seized ‘poppy straw’ indicates a positive test for the contents of ‘morphine’ and ‘meconic acid’, it is sufficient to establish that it is covered by subclause (a) of Clause (xvii) of Section 2 of the 1985 Act and no further test would be necessary for establishing that the seized material is a part of ‘papaver somniferum L’. In other words, 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 73 guilt of the accused under the provisions of Section 15 of the 1985 Act".
Case title: State of Himachal Pradesh vs Nirmal Kaur @ nimmo and others
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