STATE OF HIMACHAL PRADESH Vs. MOHAN SINGH

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 16.11.2002, passed by the learned Sessions Judge, Una, in Sessions Case No. 9 of 2002, Sessions Trial No. 8 of 2002, whereby he acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

(2.) THE prosecution story in brief is that on 19th January, 2002, ASI Akshay Kumar (PW -13) and other members of the police party met PW -1, Constable Upnesh Kumar, at Bus Stand Haroli at about 11.20 a.m. Upnesh Kumar had received secret information that accused Mohan Singh is indulging in the business of selling poppy husk at his house. The statement (Ex. PA) of Upnesh Kumar was recorded by ASI Akshay Kumar and forwarded to Police Station Una for registration of a case. The report Ex. PA was prepared under the provisions of Section 42(1) of the Act and sent to the office of Superintendent of Police, Una through Constable Mohinder Kumar. Thereafter, Akshay Kumar alongwith other police officials proceeded towards the house of the accused at village Kante. Two independent witnesses, Trilochan Singh (PW -2) and Pritam Singh (not examined) were associated with the police party. The accused was found present at his house. The Investigating Officer informed the accused that they had suspicion that he was in possession of poppy husk and wanted to search his house and also his person. He was given an offer whether he wanted to be searched in presence of some gazetted officer or Magistrate. The accused allegedly gave his consent to be searched by the police officials. Vide memo, Ex. PE, he was searched and from his personal search, one plastic envelope was found in his jacket and inside this envelope, poppy husk weighing 1.600 grams was found. Two samples were taken out of this poppy husk.

(3.) THE accused has been acquitted on other grounds, but in appeal, the main contention of the Mr. Inder Sharma, learned counsel appearing for the respondent, is that the poppy husk recovered at the spot allegedly from the possession of the appellant cannot be said to be poppy within the meaning of the Act as the report of the Chemical Examiner is incomplete and does not lead to the inference that what was recovered was opium poppy within the meaning of the Act.