STATE OF HIMACHAL PRADESH Vs. BALDEV RAJ

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 6th May, 2004, delivered by the learned Sessions Judge, Sirmaur at Nahan, whereby the accused has been acquitted of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). The prosecution story, in brief, is that on 12th September, 2002 PW -6 Inspector Khajana Ram was on patrolling duty at Bus Stand, Paonta Sahib along with other police officials. He received secret information that a person who had come from Dehra Dun side and had got down at Paonta Sahib Bus stand was carrying huge amount of poppy husk. On receipt of this information, he sent a written information vide Ext PW -4/A to the superior police officer. Two independent witnesses were associated and thereafter the accused was apprehended. He was carrying a suit case and a Jute bag. After complying with all the formalities, the Jute bag and suit case were searched. When the Jute bag was opened it contained 13 polythene packets containing poppy husk. Inside the suit case there were 8 polythene packets containing poppy husk. Each of the packets weighed 1 Kg. According to the prosecution one sample each was taken from the contents of the suit case and of the Jute bag. Thereafter these two samples were sent to the Chemical analyst who opined that the samples contained the elements of poppy husk. On this basis, the accused was challaned and charged with having committed the offence aforesaid.

(2.) THE learned trial Court acquitted the accused on the ground that the report Ext. PW -4/A sent through envelope does not mention the FIR number and there is variation in the quantity which was sent and examined by the Chemical Examiner. We are not going into these aspects of the matter since Mr. K.B. Khajuria, Learned Counsel for the accused has raised two issued. The first is that when there was as many as 8 packets in the suit case and 13 in the Jute bag i.e. 21 packets either 21 samples should have been taken or there should have been evidence that the contents of 8 or 13 packets, as the case may be, were combined and mixed together and then representative samples of the entire contraband being carried in the Jute bag and Suit case were drawn. The Contention of Mr. K.B. Khajuria, Advocate, has merit because when the contraband was packed in separate packets, drawal of sample from one of the packets could not indicate that the other packets in the suit case or in the Jute bag also contains the same contraband.

(3.) THE Learned Counsel for the respondent has drawn our attention to the definition of term 'poppy straw' used in Section 2(xviii), which reads as under: