STATE OF HIMACHAL PRADESH Vs. SORAN SINGH

JUDGEMENT

(1.) This appeal was brought by the State assailing the judgment of the learned Additional Sessions Judge, Sirmaur District at Nahan in Session Trial No. 11-N/7 of 1990 dated 23-4-1991 acquitting the respondent-accused for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). This was listed for hearing before a Division Bench comprising two of us (Chief Justice and Justice Lokeshwar Singh, Panta) on 19-12-1997. After hearing both sides for some time, the Division Bench expressed the view that the case needs to be heard by a Full Bench of the Court and directed that it should be listed before this Full Bench on 24th December, 1997. The order of reference reads :"A Division Bench of this Court in Criminal Appeal No. 2 of 1995 dated 26th August, 1996 expressed the opinion that "the appointment of the Public Analyst, Food and Drugs Laboratory, Kandaghat as Chemical Examiner for the State of Himachal Pradesh does not cover the cases under the Act (The Narcotic Drugs and Psychotropic Substances Act, 1985). Under Rule 2(c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985, 'Chemical Examiner' has been defined as the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or as the case may be, Gazipur. Rule 17 occurring in Chapter-III of the Rules deals with procedure for sending opium delivered by a cultivator and suspected to be adulterated. As per Rule 22 if it is found to be adulterated on examination by the Chemical Examiner in the Government Opium Factory, the same may be liable to confiscation by the General Manager.

(2.) Prima facie, we are of the view that since Chapter-III speaks of Opium poppy cultivation and production of opium, the Chemical Examiner referred to in the Rules to examine the opium supplied by an authorised cultivator is the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or Ghazipur. The Rules are silent as to who should chemically examine a contraband seized under the Act. Prima facie, we agree with the learned Assistant Advocate General that if every contraband seized under the N.D.P.S. Act has to be sent to the Chemical Examiner at Neemuch or Ghazipur, it would result in avoidable delay and render the Act unworkable. He also says that it could not be the intention of the rule-making authority that in every case of seizure of contraband, the examination must be conducted by the Chemical Examiner at Neemuch or Ghazipur. This view is supported by a decision of the Full Bench of the Madhya Pradesh High Court reported in Ram Dayal v. Central Narcotic Bureau, 1993 Cri LJ 1443.

(3.) One other aspect relates to the question whether mandatorily the provisions of the Narcotic Drugs and Psychotropic Substances Act have to be complied with in cases of accidental seizure of contraband. A Full Bench of this Court in State v. Vidya Devi, (1993) 2 Sim LC 6 : (1993 Cri LJ 3556), expressed the view that :