STATE OF H.P. Vs. MEHAR CHAND

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 22.12.1999, whereby the learned Special Judge acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act').

(2.) BRIEFLY stated the facts of the case are that the police received secret information that the accused who is working in a Dhaba is dealing in the sale of contraband. The police party led by PW -8 SI Ashok Kumar after recording his reasons of belief vide memo Ext.PW -3/A went to the Dhaba along with Constable Jaswant Singh, Gurbax Singh and Chuhru Ram. Accused Mehar Chand was found present at the Dhaba. He was employed there. After giving him an option, the accused was searched and the search of the Dhaba was also conducted. From the right pocket of accused Mehar Chand, three packets were recovered. These contained opium wrapped in polythene. Thereafter the police party searched the hearth (Bhathi) and behind the hearth inside a tin container which had wheat in it, seven more packets were recovered which contained opium. On weighment of the opium, it was found that 25 gms. opium had been recovered from the possession of the accused and 50 gms. from the tin container. Two samples of 9 gms. each were taken from the opium recovered from the tin container and two samples of 8 gms. each were taken from the opium recovered from the pocket of the accused. These were sealed with seal impression 'B' and thereafter rukka was sent to the police for registration of the case. The accused was made to face trial and after trial has been acquitted. The main reasons which weighed with the trial Court were that there was non -compliance of Section 55 of the Act and the independent witnesses have not supported the prosecution.

(3.) ACCORDING to the learned Counsel for the accused, the prosecution has failed to prove that the stuff which was recovered from the Appellant/accused was opium within the meaning of Section 2 Clause (xv) of the Act. According to him, the report of the Chemical Examiner Ext.PX, does not show that the stuff recovered from the accused was coagulated juice of opium poppy or that it was a mixture of coagulated juice with some other material having morphine content of more than 0.2 per cent. Opium has been defined, as follows under Clause (xv) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985: