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Section 15 of NDPS Act speaks about poppy straw.

As a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” 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,

(c) but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum 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;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

Section 15. Punishment for contravention in relation of poppy straw. – Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.


 

Supreme Court of India

Bench: K.T. Thomas, Doraiswamy Raju, S.N. Variava.

CASE NO.:

Special Leave Petition (crl.) 73  of  2000

Special Leave Petition (crl.)          4141       of  1999

PETITIONER:

AJAIB SINGH

Vs.

RESPONDENT:

DATE OF JUDGMENT:     11/04/2000

BENCH:

K.T. Thomas, Doraiswamy Raju & S.N. Variava.

JUDGMENT:

  1. N. Variava, J.

Leave granted.

J Both these       Appeals can be disposed of by   this common Order.

Appellants          in both appeals were convicted separately by two separate trial courts under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’). Each of them was sentenced to undergo rigorous imprisonment for ten years and a fine of Rupees one lakh. In default of payment of fine Appellant Ajaib Singh was to undergo rigorous imprisonment for a period of three years and Appellant            Sapinder Singh  was to undergo rigorous imprisonment for a period of one year. They filed separate appeals        and the High Court of Punjab and Haryana dismissed their appeals by separate judgments and those judgments are now impugned before us. Appellant Ajaib Singh was found to be in possession of 10 kilograms of Poppy husks on 4.6.1996. Appellant Sapinder Singh was found to be in possession of 10 bags each containing    34 kilograms       of poppy husks on 23.12.1993. The common question involved in both      the appeals        is whether poppy husks would fall           within   the expression “poppy straw”.

When the SLPs were heard this Court was not inclined to entertain the SLPs. However, it was submitted, in both the SLPs, that the Appellants had been convicted under Section 15 of the NDPS Act. It was submitted that Section 15 deals with offences              relating to “poppy straw”, whereas what              had been recovered from the Appellants was “poppy husk”. It was submitted that the Appellants could not have been convicted unless the offence alleged against them fell strictly within the provisions       of the NDPS Act. It was submitted that if the NDPS Act did not provide for any offence in respect of “poppy husk” then the convictions could not be maintained.

As  a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered       the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” 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,

(c)           but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum 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;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

“Section 15. Punishment for contravention in relation of poppy straw. – Whoever,           in contravention of         any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells,            purchases, uses or omits to warehouse poppy straw or removes              or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend        to twenty years and shall also be liable to             fine which shall not be less than one lakh rupees but which  may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Mr.         O.P.       Sharma for the Appellant Ajaib Singh      has submitted that          the offence under Section 15     is only in respect of producing, possessing, transporting, importing or exporting inter-State, selling, purchasing, using       or omitting to warehouse “poppy straw”.    Mr. Sharma submits that the terms “poppy straw” as defined in Section 2(xviii), “opium                poppy” as defined in Section 2(xvii) and “opium” as defined        in Section 2 (xv) all have a common ingredient i.e. “opium”. He submits      that a conjoint reading of all        the above mentioned sub- clauses shows that an offence can only be in relation to a substance which contains more than  0.2 per cent of morphine. He submitted that the “poppy husk” is non-narcotic.     It submitted that it has thus not                been defined    anywhere or made punishable under the NDPS Act. He submitted that “poppy husk” does not contain more than     0.2 per cent of morphine and thus no offence could be said to have been made out. He submitted that “poppy husk” is        not “poppy         straw”   and that there can           be no                offence                for possession of “poppy husk”.

Mr.         Rao Ranjit for Appellant Sapinder Singh supported Mr. Sharma. He further submitted that the chemical report shows that what was recovered was “chura post poppy heads”. He relied upon certain passages from Modi’s Text Book of Medical Jurisprudence & Toxicology wherein it is, inter alia stated as follows :

“Poppy seeds (khas-khas)           are innocuous and white in colour, used as a constituent in some foods or are sprinkled over some Indian sweets. It is regarded as a demulcent and a nutritive. The seeds yield a bland oil, known as poppy seed oil (khas khas ka tgel), which is largely used for culinary and lighting purposes”

He also showed to Court the definition of the term poppy in the Shorter Oxford Dictionary and Webster’s           Dictionary. He also showed to Court the definition of the term husk in Webster’s Dictionary.              He submitted that the NDPS Act                was dealing        with substances which affect the cerebral functions and/or the peripheral nervous system and/or the functions of the body. He submitted that it is clear that         the “poppy husk” would not have any somniferous poisons which affect on the Central Nervous System of the body. He submitted                that “poppy husk” was merely the waste on the top covering of the seed.     He submitted that the “poppy husk” was part    and parcel           of the seed. He submitted that if it                was removed from the seed      it becomes waste which, by        itself,     was worthless. He submitted that Section 2(xviii) specifically provides that                “seed” is not “poppy straw”. He submitted that “poppy husk” being part and parcel of “seed” would not fall within the definition of the term poppy straw.

On          the other hand Shri Rajiv Dutta, learned counsel for the respondent – State, has submitted that the provisions of the NDPS Act     are very clear. He submitted       that under Section          15 an offence is committed if anybody produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse “poppy                straw”. He submitted that the offence under Section 15 is           different from the offence under Section 18 which deals with “opium poppy” and “opium”.               He submitted    that “poppy        straw”   has been defined under the NDPS Act.        He submits         that it includes all parts of “opium            poppy”.                He points             out that the terms “opium poppy” means the plant of the species Papaver. He submitted that the term “all parts” would also include the “husk”.   He submitted that the          husk was not worthless. He submitted that it was not at               all necessary that             the “husk” form part of the               “seed”. He submitted that           “seed” has been excluded, because in India the “seed” is                used as constituent        in foods and       even sprinkled over some Indian sweets. He pointed out that the seed also yields a bland oil, which is largely used   for culinary and lighting purposes. He submitted that for an offence        under                Section 15 it was not at all necessary       that there must be more than 0.2 per cent of morphine in the item which has been seized.

Mr.         Dutta     also submitted that this point is being raised for the first time in the Appeals and that it had not been taken up before the lower courts. He submitted           that such a          point     should not be allowed to be raised for   the first time in the Appeal.

It is undoubtedly true that this point is being taken up for the first time in the Appeal. However, it is a point of law which would have a bearing on a large number of cases. We, therefore,            permit the Appellants to raise this point. It is a point of law which requires to be decided.

We are unable to accept the arguments of Mr. Sharma and Mr. Rao. Under Section 15 the offence is in respect of “poppy                straw”. Even though the term “poppy husk” has               not been defined in NDPS Act, the term “poppy straw” has                been defined. The term “poppy straw” includes all parts (except the seeds) of the “opium poppy”. “Opium poppy” means  the plant of the species Papaver.             Thus except for the seed all other parts of the plant of the species Papaver would   fall in the             term “poppy straw”. To be noted that parts of   the plant Papaver would fall within the term “poppy straw” even though        no juice has        been extracted therefrom. For an offence           under    Section 15 it is not at all necessary            that “poppy        straw”   should have been used or made into “opium”. For cultivation, producing,                manufacturing, possessing, selling, purchasing, transporting, importing or exporting inter-State or           using                opium there is   a separate offence provided for under Section 18. If the alleged offence is under Section             18, then the question may arise whether    the preparation contained           more than 0.2 per cent of morphine. For an                offence under Section 15, question of   considering whether      the preparation contains more than 0.2 per cent of morphine does not arise. As seen above even though no juice may have been  extracted, so long as it is a           Papaver, it would still be “poppy straw” if it is a part of the plant Papaver.

The        Modi’s Text        Book of Medical Jurisprudence & Toxicology says that    a poppy seed is used in foods , sprinkled over sweets and also yields a bland oil, which is used for culinary and lighting purposes. It is because of this that a seed has been excluded from the definition of poppy straw.         Poppy seed could be used in food or Indian sweets         or made into oil, which is largely used for culinary and lighting purposes only after it is de-husked. Thus the seed would be separated from the husk. The definition of husk as given in Webster’s Dictionary, shows that the   husk is any covering, especially when it is comparatively worth less. The husk whether it is on the seed or is removed from the seed remains a part of the plant Papaver. In the commentaries on NDPS Act by Mr. P.K.      Jain it is set         out that crushed capsules of poppy of commonly called “poppy husk” or “bhuki” whether extracted or not and that     they contain       a certain percentage of morphine and are often used as addiction producing intoxicants.              Thus it would     fall within            the definition    of the term “poppy straw”, which includes all parts of the plant Papaver. While seed            has been specifically excluded husk has not been excluded, from the definition of the term “poppy straw”. Therefore, in our view the producing, possessing, transporting, importing, exporting inter- State, selling, purchasing, using or omitting to warehouse poppy husk would be an offence under Section 15 inasmuch as poppy husk would fall within the term poppy straw as used in that Section.

In            this view of the matter the Appeals        would stand dismissed.

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Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. – owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

ndps act

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NOs. 1690-1691 OF 2012

(Arising out of S.L.P. (Crl.) Nos. 9415-9416 of 2011)

Sumit Tomar                                          …. Appellant(s)

Versus

The State of Punjab                                …. Respondent(s)

 

J U D G M E N T

P.Sathasivam,J.

1)    Leave granted.

2)    These appeals are  directed  against  the  judgment  and  order  dated

31.01.2011 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 2079 SB of 2009 whereby the High Court dismissed the criminal appeal filed by the appellant herein and also of the order dated 17.05.2011 passed by the High Court in Crl.M. No. 26283 of 2011 regarding correction of the date in the judgment.

3)    Brief facts:

(i)    According to the prosecution, on 27.06.2004, at about  5.00  p.m.,  a

special barricading was set up by the police party at Basantpur Bus Stand, Patiala. At that time, the police party signaled to stop a silver colour Indica Car bearing No. DL-7CC-0654 which was coming from the side of Rajpura. The driver of the said car (appellant herein), accompanied with one Vikas Kumar (since deceased), who was sitting next to him, instead of stopping the car tried to run away, but the police party immediately blocked the way and managed to stop the car. On suspicion, the police checked the car and found two plastic bags containing ‘bhooki’ opium powder from the dickey of the said vehicle. The contents of both the bags were mixed and two samples of 250 gms. each were taken out. The remaining contraband weighing 69.50 kgs. was sealed in two bags and the samples were sent to the Forensic Science Laboratory (FSL) for examination.

(ii) On the same day, i.e., 27.06.2004, a First Information Report (FIR) being No. 105 of 2004 was lodged by the police against the appellant herein and Vikas Kumar under Sections 8, 15, 60, and 61 of the Narcotic Drugs & Psychotropic Substances, Act, 1985 (in short “the NDPS Act”).

(iii) On receipt of the report of the Chemical Examiner and after completion of all the formalities relating to investigation, the case was committed to the Special Court, Patiala and numbered as Sessions Case No. 118T/06.09.04/17.11.08. During the pendency of the case, Vikas Kumar died. The Special Court, Patiala, by order dated 20.08.2009, convicted the appellant herein under Section 15 of the NDPS Act and sentenced him to undergo rigorous imprisonment (RI) for 10 years alongwith a fine of Rs. One lakh, in default, to further undergo R.I. for one year.

(iv) Being aggrieved, the appellant herein filed Criminal Appeal No. 2079 SB of 2009 before the High Court of Punjab & Haryana. Learned single Judge of the High Court, by impugned order dated 31.01.2011, dismissed the said appeal. Questioning the same, the appellant has filed these appeals by way of special leave before this Court.

4) Heard Mr. V. Giri, learned senior counsel for the appellant and Ms. Noopur Singhal, learned counsel for the respondent-State.

5) Mr. V. Giri, learned senior counsel for the appellant raised the following contentions:

  1. i) one Kaur Singh, an independent witness, was allegedly joined by the prosecution but has not been examined. Though the prosecution claimed that the presence of Kaur Singh at the spot was natural, since he was not examined, the entire story of the prosecution has to be rejected;

 

  1. ii) in the absence of independent witness, conviction based on official witnesses, cannot be sustained; and

iii) inasmuch as after the alleged seizure of contraband in two separate bags, there is no need for the officers to mix both the samples which was an irregularity and goes against the prosecution case.

6) On the other hand, Ms. Noopur Singhal, learned counsel for the State submitted that the person who was present at the time of seizure was Kaur Singh and, hence, he is a natural witness and to show their bona fide, the prosecution summoned him for examination, but he failed to appear. She further submitted that mixing of poppy husk found in two bags is not an irregularity, on the other hand, according to her, the prosecution has proved its case beyond reasonable doubt and prayed for confirmation of the order of conviction and sentence.

7) We have carefully considered the rival submissions and perused all the relevant materials.

8) As regards the first two contentions raised by learned senior counsel for the appellant, it is true that Kaur Singh, according to the prosecution, is an independent witness, however, he was not examined on the side of the prosecution. It is the case of the prosecution that on 27.06.2004 while Kaur Singh was just passing through, he met the police party who had laid a special nakabandi near Basantpur Bus-stand for nabbing the anti-social elements. In such circumstance, his presence cannot be doubted, on the other hand, his presence seems to be natural and a perusal of the consent memo, the recovery memo and the arrest memo shows that he was present at the time when the recovery was effected from the accused. His signatures appended in all these memos show that he has witnessed the recovery. It is true that the prosecution could have examined him. For this, it is the stand of the prosecution that in spite of necessary steps taken by issuing summons, he did not appear for which the prosecution case cannot be thrown out.

9) In order to substantiate its claim, the prosecution examined Shri Lakhwinder Singh, Head Constable as PW-1, Shri Devinder Kumar, owner of the car as PW-2, Shri Gurdeep Singh, Assistant Sub-inspector of Police as PW-3 and Shri Mohan Singh, Head Constable as PW-6. The Special Court as well as the High Court, on going through the evidence of the above-mentioned official witnesses and the documents, namely, FIR, seizure memo, FSL report etc., accepted the case of the prosecution. Even before us, learned senior counsel for the appellant took us through the evidence of the above- mentioned prosecution witnesses and the connected materials. In a case of this nature, it is better if the prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case. It is not in dispute that the present appellant (A-2) was driving the car in question which carried the contraband. PW-2, owner of the car was also examined and proved its ownership and deposed that Sumit Tomar demanded the said car for personal use. In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the NDPS Act. Accordingly, we reject both the contentions.

10) The next contention, according to the learned senior counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15 (c) of the NDPS Act, which prescribes minimum sentence of 10 years and which may extend to 20 years where the contravention involves commercial quantity, the mixing of two bags is a grave irregularity which affects the interest of the appellant. We are unable to accept the said contention. It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 grams each, the quantity measured comes to 69.50 kgs which is more than commercial quantity (small quantity 1000 gms/commercial quantity 50 kgs. and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected.

11) Taking note of all the materials, the evidence of official witnesses, PW-2, owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

12) In the light of the above discussion, we do not find any merit in the appeals, consequently, the same are dismissed.

………….…………………………J.

(P. SATHASIVAM) ………….…………………………J.

(RANJAN GOGOI) NEW DELHI;