Gujarat High Court
Hathi @ Mangalsinh Ramdayalji vs State Of Gujarat on 23 September, 1992
Equivalent citations: (1993)2GLR1743
JUDGMENT S.M. Soni, J.
1. One Hathi alias Mangaldas Ramdayalji was found with some posh na doda at Vadodara Railway Station, Platform No. 3 in the morning at about 5-30 a.m. of 7-5-1988 by P.S.I., I.C.B. Shri Budarbhai Narothambhai Chavda and member of his staff. About 15 kg. of posh na doda was found from his possession. Sample of about 100 gm. was taken. It was sent to Forensic Science Laboratory, Surat where Sr. Scientific Assistant-cum-Assistant Chemical Examiner to Government of Gujarat, Regional Forensic Science Laboratory, Surat found it to be fragments of poppy straw (posh doda)(poppy straw). He was therefore charge-sheeted and was committed to the Court of Sessions, Vadodara where the case against him was registered as Sessions Case No. 172 of 1988. He was tried and ultimately found guilty by the Additional Sessions Judge, Vadodara by his judgment and order dated 26-6-1989. The learned Judge held him guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act') and awarded sentence of five years R.I. and a fine of Rs. 1.00 lakh in default two years R.I. He was also held guilty under Section 660)(b) of the Bombay Prohibition Act for which separate sentence was not awarded.
2. Being aggrieved by the judgment and order he (Hathi alias Mangaldas Ramdayalji) has preferred Criminal Appeal No. 477 of 1989 while the State of Gujarat has also preferred a Criminal Appeal No. 496 of 1989 for enhancement of sentence. Both the appeals are admitted and placed for final bearing before us. As both the appeals arise from the common judgment they are disposed of by this common judgment.
3. Heard Mr. Budhbhatti, learned Advocate for the accused and learned A.P.P. Shri S.P. Dave for the respondent-State.
4. Mr. Budhbhatti has challenged the order of conviction on the grounds that the prosecution has failed to prove that the muddamal is found from possession of the accused. Even if so found, the prosecution has failed to establish that the said substance is a poppy straw as defined in Clause (xviii) of Section 2 of N.D.P.S. Act, 1985, possession of which is prohibited under Section 15 of N.D.P.S. Act, 1985. Thus, learned Additional Sessions Judge has erred in holding that the accused was found in possession of said posh na doda (poppy straw;) and/or the learned Additional Sessions Judge has erred in holding that the substance found from possession of the accused is poppy straw as defined in Clause (xviii) of Section 2 of the N.D.P.S. Act. Mr. S.P. Dave, learned A.P.P. supports the judgment and order of conviction. He, however, contends that so far as sentence part of the judgment is concerned, the learned Judge has erred in imposing a lesser sentence than the minimum sentence prescribed under Section 15 of the N.D.P.S. Act and it therefore be enhanced.
5. Before discussing the diverse contentions of the parties, it will be relevant to refer to one aspect of the matter in this case. Mr. Budhbhatti, while referring to the report (Exh. 10) of the Sr. Scientific Assistant contended that though it is mentioned in the report that it is a vegetable plant to be a posh na doda, there is no botanical report of the substance. We, therefore, in the interest of justice called for the Sr. Scientific Assistant who had submitted report (Exh. 10). Said Sr. Scientific Assistant disclosed that in this matter botanical report was also obtained. However, as the same was not on record, we examined him as a witness before This Court and got produced the said report on record.
6. The first question to be answered is whether the learned Assistant Sessions Judge has erred in holding that the accused is found in possession of contraband goods. To establish this fact prosecution has examined P.S.I. Shri Chauhan (Exh. 13), Police Constable Shri R.A. Sharma (Exh. 15), an independent witness A.B. Chauhan (Exh. 16) and a panch witness Shri R. Shivaji (Exh. 11). All these witnesses support the evidence of each other in all the material particulars. It is to the effect that in the morning of 7-5-1988 at about 5-30 a.m. near the northern stairs of Platform No. 3 of Vadodara Railway Station, P.S.I Shri Chauhan intercepted the accused. Accused had at that time on his head a jute bag. Accused was asked to put the same down and the same was searched in presence of two panchas and about 15 kg. of posh na doda was found. This part of evidence is supported by all (he prosecution witnesses. It is argued by Mr. Budhbhatti, the learned Advocate for the accused that two of the witnesses are the police personnels and third witnesses is a licensed coolie working on the Vadodara Railway Station and therefore they cannot be said to be an independent witnesses. So far as licenced coolie is concerned it cannot be said that he is under the control of police in any manner whatsoever. Coolies are issued licences by the Railway Authority to carry out loading and unloading work at the Railway Station. In our opinion, Police Authority does not come in picture for grant or refusal of licence to a coolie. Therefore it cannot be said that A.B. Chauhan is not an independent person. Apart from this, it is now settled law that conviction can be based solely on the evidence of police personnel, if there is nothing in evidence of police to suspect or doubt his evidence whereby it can be inferred that the said Police Officer has attempted to involve the accused wrongly in the matter or that the police personnel has any axe to grind against the accused. It is true that what is against the accused in the mind of the Police Officer cannot be known by the accused himself, however one can say that from the evidence of the Police Officer on record if there is some flow in evidence of the Police Officer, it may need corroboration. In absence of any flow in his evidence, it is improper, unjust and illegal to ask for corroboration to his evidence simply because he happens to be a Police Officer. To be Police Officer is not a stigma on the character of a person. Apart from this evidence of the Police Officer is further supported by the evidence of the panch witness Raju Shivaji (Exh. 11) who is equally an independent one and who is incidentally present on thejjailway Station. Said panch neither knows the Police Officer nor knows the accused, but, he has agreed to remain present as a panch to discharge his duty as a citizen. Therefore, there is no substance in the contention of Mr. Budhbhatti that the prosecution has failed to establish possession of posh na doda of the accused and thereby the learned Additional Sessions Judge has erred in holding that the accused is found in possession of the contraband goods.
7. The next question is whether the prosecution has proved, beyond reasonable doubt that the substance found from the possession of the accused is poppy straw as defined in N.D.P.S. Act or opium as defined in the Bombay Prohibition Act.
8. We will deal with opium defined under B.P. Act later on. We will first deal with the question whether the substance found from possession of the accused is a poppy straw as defined under N.D.P.S. Act. Poppy straw as defined under Section 2 (xviii) reads as under:
"Poppy 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 theref So, in view of this definition, except seeds of opium poppy, any of its parts after the same being harvested is a opium poppy. Therefore, a substance to be a poppy straw, it must first be opium poppy or any part thereof. Opium poppy is defined in Section 2 (xvii) of N.D.P.S. Act us under:
"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 purposes of this Act, Thus, in view of the definition of opium poppy under N.D.P.S. Act, the substance to be opium poppy must be either the plant of the species Papaver Somniferum L. or any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and such extracted substance may be declared to be opium poppy for the purpose of N.D.P.S. Act. Therefore to say that a substance is an opium poppy, it must be proved by the prosecution that it is. either the plant of the species of Papaver Somniferum L. or it is the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and may have been declared to be opium poppy for the purpose of this Act.
9. On substance being found from possession of accused it was sent I to the Forensic Science Laboratory for analysis as the same was alleged to be opium poppy under the N.D.P.S. Act. It was analysed and report is at Exh, 10, on record. Report shows that the contents of the exhibit has been identified as fragments of Poppy capsule posh doda. As the botanical report was not on record, we had called for the said report and the concerned expert was examined by us as a Court witness and his report is also taken on record. In the botanical report also it is shown that specimen is wall fragments of poppy capsule. The reports of the Forensic Science Laboratory do not say that the substance belongs to the species Papaver Somniferum L. and/or species of Papaver from which opium or any phenanthrene alkaloid can be extracted and the Central Government may by notification in the Official Gazette, declare such extract to be opium poppy. It is not shown in the report that opium or phenanthrene alkaloid can be extracted from this substance and such extract may be declared opium poppy by the Central Government. Thus in our opinion, simple find of fragments or wall fragments of poppy capsules (posh na doda) by itself does not become opium poppy.
10. The question may arise why the substance so opined is not opium poppy. Commercial source of opium which is the inspissated justice obtained from the unripe fruits of plant known as Papaver Somniferum Linn. This Papaver Somniferum Linn belongs to poppy family of Papaveraceae which is also known as poppy family. As per the book "Poisonous Plants of India" by R.N. Chopra, R.L. Badhwar and Section Ghosh, family of Papaveraceae (poppy family) has got three members. They are Argemone, Meconopsis and Papaver.
First member of family is Argemone. The plant of Argemone whose American plant A. Mexicana Linn has been naturalised in India and known as Argemone Mexicana Linn. The seeds of this plant are considered more narcotic than opium. The plant devoid of seeds contain alkaloids berberine and protopine. The seeds are found to contain an alkaloid which gave reactions closely resembling those of morphine, but this plant has been shown to contain no morphine. Protopine was first isolated from opium but since been found in a number of Papaveraceous plants. Thus, Argemone Mexicana Linn though belongs to Papaveraceae family, does not contain morphine.
Second member of the family is Meconopsis (From the Greek mekon -a poppy, an opsis - appearance). Members of this genus are reputed to possess powerful narcotic and poisonous properties. The species of this member are Meconopsis Aculeata Royle (Blue Poppy) and Meconopsis Napaulensis DC. The chemical examination of this Meconopsis Aculeata Royle did not show the presence of any alkaloid, while the roots of Meconopsis Napaulensis DC are stated to have narcotic properties.
Third member of the family is Papaver, the species of which are-
(1) Papaver dubium Linn (Pale-red Poppy, Smooth Long-headed Poppy) (2) Papaver nudicaule Linn (Orange Poppy, Yellow Poppy) (3) Papaver nudicaule Linn (Orange Poppy, Yellow Poppy) (Sic) (4) Papaver Somniferum Linn (Carnation Poppy, Opium Poppy, Poppy, White Poppy).
11. So far as members of Papaver is concerned, the flowers and fruits are sedative and the milky juice is narcotic, sometimes exotic. Most of the species yield some or the other of the alkaloid of opium to a greater or lesser extent. Species P. Somniferum Linn is, however, the commercial source of opium, which is the inspissated latex of the unripe fruit of this plant. Alkaloids found from member Papaver from its different species are morphine, codeine, papaverine, narcotine, Narceine and other alkaloids. From amongst these alkaloids, morphine is the most dangerous of the opium alkaloids, because death is produced by narcosis and through asphyxia. It is, therefore, necessary to see as to what alkaloids and to what extent alkaloids are present in other species of this Papaver member.
12. From the first species Papaver dubium Linn, alkaloids to the extent of 0.004 to 0.025 per cent have been isolated from the milky juice which contains both aporeine and aporeidinc. Capsules have been found to contain aporeine to the extent of about 0.015 per cent. This alkaloid produces a burning and numbering (Sic.) sensation on the tongue, and is a tetanic poison.
Second species Papaver nudicaule Linn contains a cyanogenetic glucoside, and 100 gm. of fresh leaves during the month of August have been found to yield 3.1 to 5.1 mg. of hydrocyanic acid. The yellow-flowered variety yields more hydrocyanic acid than the red or white-flowered variety.
Third species Papaver rhoeas Linn contains a non-toxic and tasteless alkaloid, rhoeadine in all parts of the plant. The capsules are said to contain morphine paramorphine, and narcotine in addition to rhoeadine. The milk from the capsules has slightly sedative properties.
Fourth species is the Papaver Somniferum Linn which is known as Aphina, Lhuskhus, Posta in Gujarat. The capsules of this Papaver Somniferum when unripe yield opium. When ripe and ripe, it contain only small quantity of the alkaloids and therefore their narcotic properties are mild. A warm decoction prepared from {hem is used as a household remedy as a sedative in fomentations and poultices for application to inflamed parts of the body. This opium yielded from this species Papaver Somniferum contains numerous alkaloids and they are about 25 which are recognised. Principal alkaloids separated from opium are (1) morphine (10%), codeine (2%), and minor alkaloids like thebaine (0.5%). Indian opium is richer in codeine than that produced elsewhere. The amount of morphine varies from 9.5 to 14.2%, codeine 1.8 to 4.0%, and narcotine 3.9 to 7.6%. The morphine content in the capsules (without seeds) varies very greatly; the highest found was about 0.5%. Unripe capsules (in August without seeds) showed 0.050 to 0.020 per cent of morphine and 0.0113 to 0.0116 per cent of narcotine and codeine; ripe capsules (in September without seeds) showed the presence of 0.018 per cent of morphine and 0.028 per cent of narcotine and codeine. The amount of total alkaloids in the unlanced capsules is 0 15 to 0.22 per cent. According to Guillaume and Faure the "stigmas" (stigmatic rays on the capsules?) contain more morphine than the whole "heads" (capsules?) but the morphine content decreases both in the heads and the stigmas from green fresh heads to yellow dry heads, and thereafter falls but slightly during storage. According to Goris straw of poppies also contain but very little of morphine, only 0.08 per cent.
Expert Ajitbhai Gamit has admitted in cross-examination that "I know about the Papaveraceae family. It is not true that Papaver is one of the species. He has volunteered that Papaver is a genus of that family. I agree that Papaver genus has many species. I agree that one of the species is Papaver Somniferum."
13. It will be noted that all the members and their species of the family of Papaveraceae does not contain morphine and even if some of the species contain morphine, the extent of morphine is a factor to make it a narcotic substance. Keeping this aspect in mind, it will be necessary to consider whether fragments of poppy capsules as found by the expert of the Forensic Science Laboratory be said a poppy straw as defined in Clause (18) of Sac. 2 of the N.D.P.S. Act, Family of Papaveraceae is known as poppy family and all its members and its species are known as different types of poppy. Therefore, simply, because the expert found the substance to be fragments of poppy capsules, it by itself does not become a poppy straw as defined in the N.D.P.S. Act. Poppy straw as defined in the Act is "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." Therefore to bring within the mischief of the Act, fragments of poppy capsules must be the parts of opium defined in Clause (17) of Section 2 of the N.D.P.S. Act Opium poppy is defined as (a) the plant of the species Papaver Somniferum L-, and (b) the plant of 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. The expert has not opined that the fragments of poppy capsules alleged to be found from possession of the accused are the poppy capsules of plant of Papaver. Somniferum Linn. It is also not opined by the expert that the said fragments of poppy capsules belongs to any other species of Papaver member of Papaveraceae family. Non-mention by the expert as to which species of member of Papaver of the Papaveraceae family the fragments of Papaver capsules found from the accused belong and/or from the said species or member opium or any phenanthrene alkaloid can be extracted and the same may be declared to be opium poppy by notification in the Official Gazette by The Central Government does not bring that substance found within the definition of opium pappy. It is necessary to say that substance analysed is either (a) the plant of the species Papavar Somniferum L, and (b) the plant of 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 to show the substance to be poppy straw as defined in N.D.P.S. Act and none other members and its species though of Papaveraceae family, yet opium cannot be extracted. This is required to be so mentioned by the expert for the simple reason that in some of the species of member of Papaveraceae family, though morphine can be extracted, it does not contain more than 0.2 per cent in quantity. As referred earlier, from the species of member of Argemone, Meconopsis, though they belong to Papaveraceae family and are known as poppy, alkaloid morphine is not found present. In Papaver member and its species, morphine is not found in Papaver dubium Linn, and Papaver nudicaule Linn. However, in species Papaver rhoeas Linn morphine, paramorphine arc found in addition to rhoeadine which is the main alkaloid found in that species. It is only Papaver Somniferum Linn whose capsules yield opium which contain alkaloid, principal of which is morphine to the extent of 10%. Therefore, other species from which opium can be extracted, that opium also must satisfy the definition of opium as defined in Clause (15) of Section 2 of the Act and as per that definition morphine extracted from that substance should not be less than 0.2 per cent. Thus, inspissated juice even of opium poppy does not contain more than 0.2% of morphine, it will not be opium as defined under the N.D.P.S, Act. Opium poppy is either the plant of species of Papaver Somniferum which contain about 10% of morphine and the coagulated juice extracted therefrom is called opium which must contain 0.2% or more percentage of morphine. Thus, in our opinion, the prosecution has failed to establish that The substance found from the possession of the accused is a poppy straw as defined in the N.D.P.S. Act. The learned Judge therefore in our opinion erred in holding that The substance found is poppy straw under N.D.P.S. Act. The learned Judge has erred in appreciating the report of the Forensic Science Laboratory.
10. Opium as defined in Section 2(30) of B.P. Act reads as under:
Opium means - (a) the capsules of the popy (Papaver Somniferum L) whether in their original form or cut or crushed or powdered and whether or not the juice has been extracted ;therefrom;
(b) spontaneously coagulated juice of such capsules; and
(c) any mixture with or without neutral materials of any of the above forms of opium;
but does not include any preparations containing not more than 0.2 per cent, of morphine, or a manufactured drug as denned in Section 2 of the Dangerous Drugs Act, 1930.
14. The report of Forensic Science Laboratory Exh. 10 does not show that the substance found is the capsules of Papaver Somniferum or is a juice spontaneously coagulated or is a mixure with or without neutral materials of any of the above forms. Thus, the learned Judge has erred in accepting the substance as opium defined under the B.P. Act.
15. The learned Judge has also erred in convicting the accused under Section 66(1)(b) of the B.P. Act even if the substance found is an opium as defined under that Act. Punishing section to possess opium under B.P. Act is Section 66(A) and not 66(1)(B). Therefore that part of judgment is also required to be corrected. However, as the prosecution has failed to establish that the substance is a poppy straw as defined in N.D.P.S. Act and opium as defined in B.P. Act, the appeal of the accused is liable to be allowed and that of the State is liable to be dismissed.
16. In the result. Criminal Appeal No. 496 of 1989 filed by the State for enhancement of sentence fails and is hereby dismissed. Criminal Appeal No. 477 of 1989 is allowed. Order of conviction and sentence under Section 15 of the N.D.P.S. Act as well as under Section 66(1)(B) of B.P. Act is set aside. Accused be set at liberty forthwith, if not required in any other case. Fine if paid, be refunded.