# STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ NIMMO AND OTHERS

- **Citation:** [2022] 11 S.C.R. 369
- **Court:** Supreme Court of India
- **Decided:** 2022-10-20
- **Case number:** Criminal Appeal No. 956 of 2012
- **Bench:** B. R. Gavai, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-himachal-pradesh-v-nirmal-kaur-nimmo-and-others-35664
- **Pages:** 47

## Headnote

Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.2(xvii)(a) and (b) and s.15 - Conviction in relation to 'poppy straw'
- 'Poppy straw' defined to mean all parts of 'opium poppy' except
the seeds - 'Opium poppy' defined under Clause (xvii) of s.2 of the
1985 Act - As per sub-clause (a) of Clause (xvii) of s.2 of the 1985
Act, 'opium poppy' means the plant of the species 'papaver
somniferum L' - As per sub-clause (b) thereof, 'opium poppy' would
also mean the plant of any other species of 'papaver' from which
'opium' or any 'phenanthrene alkaloid' can be extracted and which
the Central Government, by notification in the official gazette, has
declared to be 'opium poppy' for the purposes of the 1985 Act -
Whether it is sufficient for the prosecution to establish that the raw
material contains 'morphine' and 'meconic acid' to bring it under
sub-clause (a) of Clause (xvii) of s.2 of the Act or is it necessary for
the prosecution to further establish that, though the seized material
contains 'morphine' and 'meconic acid', the genus of the seized
material is 'papaver somniferum L' or any other species of 'papaver'
from which 'opium' or any 'phenanthrene alkaloid' can be extracted
and which is notified in the Official Gazette by the Central
Government to be 'opium poppy' for the purposes of the 1985 Act -
High Court was of the opinion that the tests conducted by the
Chemical Examiner to ascertain whether 'meconic acid' and
'morphine' were present in the sample stuff, were not enough to
reach the conclusion that the stuff was, in fact, 'poppy straw' -
Held: Prior to enactment of the 1985 Act, it was only the plant
'papaver somniferum L' which was included in the definition of 1878
and 1930 enactments - By virtue of sub-clause (a) of Clause (xvii)
of Section 2 of the 1985 Act, the same has been retained - However,
noticing that there was some material to show that some other species
of 'papaver' may also be used for the production of 'opium', the
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legislature, by an abundant precaution, also added sub-clause (b)
in Clause (xvii) of s.2 of the 1985 Act so as to enable the Central
Government to notify such a species from which 'opium' or any
'phenanthrene alkaloid' can be extracted - The legislative intent is
clear that the 1985 Act, in addition to retaining the species of
'papaver somniferum L' in the definition of 'opium poppy', enabled
the Central Government to include any other species of 'papaver'
from which 'opium' or any 'phenanthrene alkaloid' could be
extracted - The legislative intent is to bring any other species of
'papaver' which can be used for manufacture of 'opium' within the
prohibitory and regulatory provisions of the 1985 Act - Once it is
established that the seized material contains 'meconic acid' and
'morphine', it will be sufficient to establish that it is derived from
the plant 'papaver somniferum L' as defined in sub-clause (a) of
Clause (xvii) of Section 2 of the 1985 Act - Once a Chemical
Examiner establishes that the seized 'poppy straw' indicates a
positive test for the contents of 'morphine' and 'meconic acid', it is
sufficient to establish that it is covered by subclause (a) of Clause
(xvii) of Section 2 of the 1985 Act and no further test would be
necessary for establishing that the seized material is a part of
'papaver somniferum L'.
Interpretation of Statutes - Heydon's/Mischief Rule - Meaning
of - Discussed - Four factors to be considered while applying the
rule (i) position before enactment of the Act (ii) mischief and defects
for which the earlier enactments did not provide (iii) remedy (iv)
reason of the remedy - Held: Legislature by incorporating subclause (a) in Clause (xvii) of s.2 of the 1985 Act, intended to continue
'papaver somniferum L' in the definition of 'opium poppy' - However,
by taking abundant precautions and to take care of a situation
where any other species of 'papaver' was found to be used for the
production of 'opium

## Text

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 [2022] 11 S.C.R. 369
369
STATE OF HIMACHAL PRADESH
v.
NIRMAL KAUR @ NIMMO AND OTHERS
(Criminal Appeal No. 956 of 2012)
OCTOBER 20, 2022
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.2(xvii)(a) and (b) and s.15 - Conviction in relation to 'poppy straw'
- 'Poppy straw' defined to mean all parts of 'opium poppy' except
the seeds - 'Opium poppy' defined under Clause (xvii) of s.2 of the
1985 Act - As per sub-clause (a) of Clause (xvii) of s.2 of the 1985
Act, 'opium poppy' means the plant of the species 'papaver
somniferum L' - As per sub-clause (b) thereof, 'opium poppy' would
also mean the plant of any other species of 'papaver' from which
'opium' or any 'phenanthrene alkaloid' can be extracted and which
the Central Government, by notification in the official gazette, has
declared to be 'opium poppy' for the purposes of the 1985 Act -
Whether it is sufficient for the prosecution to establish that the raw
material contains 'morphine' and 'meconic acid' to bring it under
sub-clause (a) of Clause (xvii) of s.2 of the Act or is it necessary for
the prosecution to further establish that, though the seized material
contains 'morphine' and 'meconic acid', the genus of the seized
material is 'papaver somniferum L' or any other species of 'papaver'
from which 'opium' or any 'phenanthrene alkaloid' can be extracted
and which is notified in the Official Gazette by the Central
Government to be 'opium poppy' for the purposes of the 1985 Act -
High Court was of the opinion that the tests conducted by the
Chemical Examiner to ascertain whether 'meconic acid' and
'morphine' were present in the sample stuff, were not enough to
reach the conclusion that the stuff was, in fact, 'poppy straw' -
Held: Prior to enactment of the 1985 Act, it was only the plant
'papaver somniferum L' which was included in the definition of 1878
and 1930 enactments - By virtue of sub-clause (a) of Clause (xvii)
of Section 2 of the 1985 Act, the same has been retained - However,
noticing that there was some material to show that some other species
of 'papaver' may also be used for the production of 'opium', the
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legislature, by an abundant precaution, also added sub-clause (b)
in Clause (xvii) of s.2 of the 1985 Act so as to enable the Central
Government to notify such a species from which 'opium' or any
'phenanthrene alkaloid' can be extracted - The legislative intent is
clear that the 1985 Act, in addition to retaining the species of
'papaver somniferum L' in the definition of 'opium poppy', enabled
the Central Government to include any other species of 'papaver'
from which 'opium' or any 'phenanthrene alkaloid' could be
extracted - The legislative intent is to bring any other species of
'papaver' which can be used for manufacture of 'opium' within the
prohibitory and regulatory provisions of the 1985 Act - Once it is
established that the seized material contains 'meconic acid' and
'morphine', it will be sufficient to establish that it is derived from
the plant 'papaver somniferum L' as defined in sub-clause (a) of
Clause (xvii) of Section 2 of the 1985 Act - Once a Chemical
Examiner establishes that the seized 'poppy straw' indicates a
positive test for the contents of 'morphine' and 'meconic acid', it is
sufficient to establish that it is covered by subclause (a) of Clause
(xvii) of Section 2 of the 1985 Act and no further test would be
necessary for establishing that the seized material is a part of
'papaver somniferum L'.
Interpretation of Statutes - Heydon's/Mischief Rule - Meaning
of - Discussed - Four factors to be considered while applying the
rule (i) position before enactment of the Act (ii) mischief and defects
for which the earlier enactments did not provide (iii) remedy (iv)
reason of the remedy - Held: Legislature by incorporating subclause (a) in Clause (xvii) of s.2 of the 1985 Act, intended to continue
'papaver somniferum L' in the definition of 'opium poppy' - However,
by taking abundant precautions and to take care of a situation
where any other species of 'papaver' was found to be used for the
production of 'opium', the legislature vested the Central Government
with a power to include such a variety to mean 'opium poppy' for
the purpose of the 1985 Act - The defect noticed by the legislature
was that, though 'papaver somniferum L', which contained
'morphine' and 'meconic acid' and was used for the production of
'opium', was already included in the definition of 'opium' in the
earlier enactments, there was also a possibility of other variety of
'papaver' being used for 'opium' production, but could not be
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brought under the prohibitory and regulatory measures - The remedy,
which the Parliament provided was by way of incorporating subclause (b) in Clause (xvii) of s.2 of the 1985 Act thereby empowering
the Central Government to notify any other species of 'papaver'
from which 'opium' or any other 'phenanthrene alkaloid' could be
extracted, to be declared as 'opium poppy' for the purpose of the
1985 Act - The true reason for the remedy was to empower the
Central Government to include any other species of 'papaver' which
may be used for the production of 'opium' and bring the same under
the purview of the 1985 Act - The reason was that, if it is found that
any species of 'papaver' is being used for the production of 'opium',
the production of such a variety should not be permitted and the
same be brought under the prohibitory and regulatory measures as
provided under the 1985 Act - Narcotic Drugs and Psychotropic
Substances Act, 1985 - s.2(xvii) (a) and (b) -Opium Act,1878 -
Dangerous Drugs Act, 1930.
Interpretation of Statutes - Purposive interpretation -
Principles of - Held: Settled principle of law that an enactment has
to be incorporated in such a manner which advances the purpose
of the Act rather than interpreting in such a manner which defeats
the purpose of the Act - The dominant purpose of the Act, 1985
was to curb the menace of trafficking of drugs and psychotropic
substances - Therefore, the interpretation which advances the
purpose of the Act, 1985 has to be preferred rather than adopting
a pedantic and a mechanical approach - Narcotic Drugs and
Psychotropic Substances Act, 1985.
Allowing the appeal, the Court
HELD : 1. Since many deficiencies were found in the earlier
enactments and the provisions therein were not found sufficient
to deal with the problems of drug trafficking, it was found
necessary to enact a new law since after passing of the earlier
three Acts (the Opium Act, 1857, the Opium Act,1878 and the
Dangerous Drugs Act, 1930), there were tremendous
developments on an international platform and a vast body of
international law in the field of narcotics control had evolved
through various international treaties and protocols. The
Government of India had been a party to these treaties and
conventions which entailed several obligations which were not
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @
NIMMO AND OTHERS
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covered or were only partly covered under the old Acts. It was
further noticed that the scheme of the earlier Acts was not a
sufficient deterrent to meet the challenge of well-organized gangs
of smugglers. It was further noticed that the penalty provided
under the old Acts was inadequate. Taking into consideration
that the country had, for the last many years, been increasingly
faced with the problem of trafficking of drugs, which had posed
serious problems to governments at the State and Centre, it was
found necessary to enact a comprehensive law. It is thus clear
that the dominant purpose of the new enactment was to curb the
menace of trafficking of drugs and psychotropic substances.
Therefore, the interpretation which advances the purpose of the
Act has to be preferred rather than adopting a pedantic and a
mechanical approach. [Para 81][411-G-H; 412-A-C]
2. It was well recognized under the earlier enactments,
International Conventions and scientific studies that 'papaver
somniferum L' plant was the main source for the production of
'opium'. The Opium Act, 1878 so also the Dangerous Drugs Act,
1930 had recognized this position. In the International
Conventions also, this was recognized. Though for the first time
in the 1953 Protocol, in addition to "papaver somniferum L', any
other species of 'papaver', which may be used for the production
of 'opium' was included in the definition of 'opium', the subsequent
conventions of 1961 and 1988 again defined 'opium poppy' as a
plant of 'papaver somniferum L'. [Para 82][412-D-E]
3. Prior to enactment of the 1985 Act, it was only the plant
'papaver somniferum L' which was included in the definition of
1878 and 1930 enactments. By virtue of sub-clause (a) of Clause
(xvii) of Section 2 of the 1985 Act, the same has been retained.
However, noticing that there was some material to show that some
other species of 'papaver' may also be used for the production of
'opium', the legislature, by an abundant precaution, also added
sub-clause (b) in Clause (xvii) of Section 2 of the 1985 Act so as
to enable the Central Government to notify such a species from
which 'opium' or any 'phenanthrene alkaloid' can be extracted.
The legislative intent is clear that the 1985 Act, in addition to
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retaining the species of 'papaver somniferum L' in the definition
of 'opium poppy', enabled the Central Government to include
any other species of 'papaver' from which 'opium' or any
'phenanthrene alkaloid' could be extracted. This declaration has
to be done by a notification published in the official gazette. The
legislative intent is to bring any other species of 'papaver' which
can be used for manufacture of 'opium' within the prohibitory
and regulatory provisions of the 1985 Act. [Para 83][412-G-H;
413-A-C]
4. If the view as taken by the High Court is to be accepted,
a person who has been found contravening the provisions of the
1985 Act and dealing with a contraband material which has been
found in the Chemical Examiner's report to contain 'morphine'
and 'meconic acid', would escape the stringent provisions of the
1985 Act. The said could never have been the intention of the
legislature. If the view as taken by the High Court is to be
accepted, the same would frustrate the object of the Act and defeat
its very purpose. [Para 84][413-D]
5. The High Court was not justified in holding that, even
after the Chemical Examiner's report establishes that the
contraband contains 'meconic acid' and 'morphine', unless it was
established that the same was derived from the species of
'papaver somniferum L', conviction under Section 15 of the 1985
Act could not be sustained. [Para 88][414-D]
6. Once it is established that the seized material contains
'meconic acid' and 'morphine', it will be sufficient to establish
that it is derived from the plant 'papaver somniferum L' as defined
in sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act.
[Para 89][414-E]
7. The High Court was also not justified in observing that
the Chemical Examiner's report, in the alternative, should
establish that the seized material is a part of any other species of
'papaver' from which 'opium' or any 'phenanthrene alkaloid' could
be extracted and which has been notified by the Central
Government as 'opium' for the purpose of the 1985 Act. One
fails to understand as to how a Chemical Examiner could be asked
whether the seized material was a part of any other species of
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @
NIMMO AND OTHERS
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'papaver' from which 'opium' or any other 'phenanthrene alkaloid'
could be extracted when there is no such species of 'papaver'
which has been notified by the Central Government to be 'opium
poppy' for the purpose of the 1985 Act. [Para 90][414-F-H]
8. Once a Chemical Examiner establishes that the seized
'poppy straw' indicates a positive test for the contents of
'morphine' and 'meconic acid', it is sufficient to establish that it
is covered by subclause (a) of Clause (xvii) of Section 2 of the
1985 Act and no further test would be necessary for establishing
that the seized material is a part of 'papaver somniferum L'. In
other words, once it is established that the seized 'poppy straw'
tests positive for the contents of 'morphine' and 'meconic acid',
no other test would be necessary for bringing home the guilt of
the accused under the provisions of Section 15 of the 1985 Act.
[Para 91][415-A-B]
The Bengal Immunity Company Limited v. The State of
Bihar and Others [1955] 2 SCR 603 - followed.
State of Kerala v. Mathai Verghese and Others (1986)
4 SCC 746 : [1987] 1 SCR 317; Baldev Krishna Sahi
v. Shipping Corporation of India Limited and Another
(1987) 4 SCC 361 : [1988] 1 SCR 168; Sanjay Dutt v.
State through C.B.I., Bombay (II) (1994) 5 SCC 410 :
[1994] 3 Suppl. SCR 263; Balram Kumawat v. Union
of India and Others (2003) 7 SCC 628 : [2003] 3 Suppl.
SCR 24; Standard Chartered Bank and Others v.
Directorate of Enforcement and Others (2005) 4 SCC
530 : [2005] 1 Suppl. SCR 49; Hira Singh and Another
v. Union of India and Another (2020) 20 SCC 272 and
E. Micheal Raj v. Narcotics Control Bureau (2008) 5
SCC 161 : [2008] 4 SCR 644 - relied on.
Amarsingh Ramjibhai Barot v. State of Gujarat, (2005)
7 SCC 550; State of M.P. and Others v. Ram Singh
(2000) 5 SCC 88 : [2000] 1 SCR 579; Swantraj and
Others v. State of Maharashtra (1975) 3 SCC 322 :
[1974] 3 SCR 287; NEPC Micon Limited and Others v.
Magma Leasing Limited (1999) 4 SCC 253 : [1999] 2
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SCR 932; Harjit Singh v. State of Punjab (2011) 4 SCC
441: [2011] 5 SCR 691 - referred to.
Baidyanath Mishra and Another v. The State of Orissa
1968 (XXXIV) Cuttack Law Times-I 5;Hathi @
Mangalsinh Ramdayalji v. State of Gujarat 1992 SCC
OnLine Guj 311; Rajiv Kumar alias Guglu v. State of
H.P. 8 2007 SCC OnLine HP 120 and State of H.P. v.
Des Raj 2013 SCC OnLine HP 371 - referred to.
Case Law Reference
(2005) 7 SCC 550
referred to
Para 11
[2000] 1 SCR 579
referred to
Para 13
[1974] 3 SCR 287
referred to
Para 13
[1999] 2 SCR 932
referred to
Para 13
[2011] 5 SCR 691
referred to
Para 18
[1955] 2 SCR 603
followed
Para 53
[1987] 1 SCR 317
relied on
Para 67
[1988] 1 SCR 168
relied on
Para 69
[1994] 3 Suppl. SCR 263
relied on
Para 71
[2003] 3 Suppl. SCR 24
relied on
Para 75
[2005] 1 Suppl. SCR 49
relied on
Para 77
(2020) 20 SCC 272
relied on
Para 79
[2008] 4 SCR 644
relied on
Para 79
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.956 of 2012.
From the Judgment and Orders dated 02.11.2007 of the High Court
of Himachal Pradesh at Shimla in Crl. App. No.525 of 2004.
K. M. Nataraj, ASG, Abhinav Mukerji, AAG, Neeraj Jain, Sr. Adv.,
K. Parameshwar, (Amicus Curiae), M. V. Mukunda, Ms. A.
Sregurupriya, Ms. Arti Gupta, Ms. Bihu Sharma, Akshay C. Shrivastava,
Ms. Pratishtha Vij, Nakul Chengappa K. K., R. Nedumaran, G. Ananda
Selvam, Arijeet Singh, Ms. Hema, Rajendra, Rishabh Sahu, C. L. Sahu,
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @
NIMMO AND OTHERS
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Avijit Mani Tripathi, Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Sanjay
Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. A coordinate Bench of this Court, vide order dated 14th August
2018, has framed the following questions for consideration:
(i)
Whether it is necessary to particularize the species of the
contraband recovered - poppy husk, poppy straw etc.?
(ii)
So long as the prosecution proves that what was recovered
was the sample of poppy straw and whether it is necessary
for the prosecution to bring in materials to show as to what
was the species of the contraband recovered?"
2. Since the answer to the aforesaid questions have a bearing on
a number of cases under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the "1985 Act"), this
Court, vide its order dated 14th August 2018, had requested Shri P.S.
Narasimha, learned Senior Counsel (as he then was) to assist the court
as amicus curiae. Shri K. Parameshwar, learned counsel was requested
to assist Shri P.S. Narasimha. On the elevation of Hon'ble Mr. Justice
P.S. Narasimha, Shri Parameshwar continued to assist this Court as
amicus curiae.
Factual Background:
3. On 25th July 2003, when Sarbjeet Singh (PW-12) along with
some other police officials were on patrolling duty at Haroli in Una
District, he was informed by Constable Upnesh Kumar (PW-1) that the
respondent-accused was indulging in the illicit trading of 'poppy straw'
and that she had kept huge quantity of 'poppy straw' in the room where
fodder for the cattle had been stacked.
4. After complying with the formalities as prescribed under the
1985 Act, a raiding party was formed and the premises of the respondent
was searched. During the search, a bag containing 20 Kgs. of 'poppy
husk' was found in the room meant for stacking fodder. Two samples
each weighing 250 grams were separated and sealed. The respondent
was arrested. While in police custody, the respondent made a disclosure
statement that she had concealed nine more gunny bags of 'poppy husk'
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on the side of khad near Gurudwara Girgirga Sahib. Accordingly, eight
gunny bags each containing 40 Kgs. of 'poppy husk' and one bag
containing 30 Kgs. of 'poppy husk' were recovered. From each of these
nine bags, two samples, each weighing 250 grams, were separated and
sealed in separate parcels.
5. The samples were sent to the Chemical Examiner, who opined
that the samples contained contents of 'poppy husk'. After completion
of the investigation, the respondent was charged with the offence
punishable under Section 15(c) of the 1985 Act for possessing commercial
quantity of 'poppy straw'. The respondent pleaded not guilty and claimed
to be tried. At the conclusion of the trial, the trial court found the
respondent guilty and convicted and sentenced her to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and, in
default of payment of fine, to undergo rigorous imprisonment for a further
period of two years.
6. The respondent filed an appeal being Criminal Appeal No. 525
of 2004 before the High Court. During the course of hearing, the High
Court was of the opinion that the tests conducted by the Chemical
Examiner to ascertain whether 'meconic acid' and 'morphine' were
present in the sample stuff, were not enough to reach the conclusion
that the stuff was, in fact, 'poppy straw'. Therefore, the High Court
summoned the Chemical Examiner as a court witness. The High Court
came to a conclusion that the two tests conducted by the Chemical
Examiner to ascertain whether the samples contained 'meconic acid'
and 'morphine' did not indicate that the stuff examined consisted of the
parts of either the plant of the species of the 'papaver somniferum L' or
a plant of any other pieces of 'papaver' from which 'opium' or any
other 'phenanthrene alkaloid' can be extracted and which the Central
Government had notified to be 'opium poppy' for the purposes of the
1985 Act. The High Court therefore held that the two tests cannot be
sufficient evidence to hold that the stuff recovered from the respondent,
the sample of which was analysed by the Chemical Examiner, was 'poppy
straw'. The High Court further held that the prosecution had failed to
prove the sample to be of 'poppy straw' within the meaning of the 1985
Act and therefore, the respondent was not liable to conviction and
punishment for the offence described in and made punishable under
Section 15 of the 1985 Act. Accordingly, the High Court, vide impugned
judgment dated 2nd November 2007, allowed the appeal and set aside
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @
NIMMO AND OTHERS [B. R. GAVAI, J.]
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the judgment and order of conviction and sentence dated 29th November
2004 passed by the trial court. Being aggrieved thereby, the State
preferred an appeal before this Court.
7. During the pendency of the appeal, this Court found that
important questions of law arose for consideration on the aforesaid issue.
Vide a subsequent order of this Court dated 6th February 2019, the
Union of India through its Secretary, Department of Revenue, Ministry
of Finance, New Delhi was directed to be impleaded as the second
respondent.
Submissions:
8. We have accordingly heard Shri Abhinav Mukerji, learned
Additional Advocate General (for short, "AAG") for the State of
Himachal Pradesh and Shri Neeraj Jain, learned Senior Counsel appearing
on behalf of the respondents.
9. We have also heard Shri K. Parameshwar, learned amicus
curiae and Shri K.M. Nataraj, learned Additional Solicitor General (for
short, "ASG") for the Union of India.
10. Shri Mukerji submitted that the view taken by the High Court
is totally incorrect. The learned AAG submitted that under Article 47 of
the Constitution of India, the State is duty bound to bring about prohibition
of the consumption except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health. He submitted that the 1985
Act has been enacted not only to honour the constitutional commitments
but also to honour the International Conventions.
11. The learned AAG submitted that different definitions have
been given for 'opium', 'opium derivative', 'opium poppy' and 'poppy
straw' under Clauses (xv), (xvi), (xvii) and (xviii) of Section 2 of the
1985 Act. He submitted that, as per Section 15 of the 1985 Act, when a
person, in contravention of any provisions of the said 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, he shall be punished
with rigorous imprisonment for a term which may extend to one year or
with fine which may extend to ten thousand rupees or with both, or for a
term up to ten years and with fine which may extend to one lakh rupees,
or for a term which shall not be less than ten years but may extend to
twenty years and a fine which shall not be less than one lakh rupees but
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may extend to two lakh rupees, depending upon the quantity of 'poppy
straw'. He submitted that, similarly, Sections 17 and 18 of the 1985 Act
deal with punishment for contravention in relation to 'prepared opium',
'opium poppy' and 'opium' respectively. The learned AAG submitted
that the High Court has wrongly relied on the judgment of this Court in
the case of Amarsingh Ramjibhai Barot v. State of Gujarat1. He
submitted that the issue involved in the said case was totally different.
12. Shri Mukerji submitted that the National Institute of Science
and Communication, CSIR, New Delhi, in its first re- print of the Book
titled "Wealth of India", which is a dictionary of Indian Raw Materials
and Industrial Products, 1966 (hereinafter referred to as "the 1966
Dictionary"), mentions six species of 'papaver'. He submitted that a
perusal of the said authority would reveal that 'papaver somniferum L'
is cultivated as the chief source of 'opium'. He submitted that it is only
'papaver somniferum L' which contains the alkaloids 'morphine' and
'codeine'. Shri Mukerji submitted that the United Nations International
Drug Control Programme has recommended methods for testing 'opium',
'morphine' and 'heroin' in its Manual for use by the National Drug Testing
Laboratories, 1998 (hereinafter referred to as the "1998 Manual"). He
submitted that the two tests which are conducted by the appellant are
the only tests which are recommended by the United Nations. The learned
AAG further submitted that the Directorate of Forensic Science Services,
Ministry of Home Affairs, Government of India, New Delhi has issued
"Working Procedure Manual : Narcotics" in the year 2021 (hereinafter
referred to as the "2021 Manual"). He submitted that the said Manual
contains the tests which are required to be conducted for finding out the
presence of 'opium/crude morphine' and 'meconic acid'. The learned
AAG submitted that 'papaver somniferum L' is the only species which
contains 'morphine' and 'meconic acid'. It is therefore submitted that
the finding of the High Court that these two tests are not sufficient to
reach to a conclusion that the species belong to 'papaver somniferum L'
and as such, is not punishable under Section 15 of the 1985 Act, does not
lay down a correct proposition of law.
13. Shri Mukerji relies on the judgments of this Court in the cases
of State of M.P. and Others v. Ram Singh2, Swantraj and Others v.
State of Maharashtra3 and NEPC Micon Limited and Others v.
2(2000) 5 SCC 88
3(1975) 3 SCC 322
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Magma Leasing Limited4 in support of the proposition that the
interpretation which advances the purpose of the Act has to be preferred
as against the one which defeats the purpose of the Act.
14. Shri Jain submitted that since the provisions of the 1985 Act
are very stringent in nature, the Court will have to prefer an approach of
strict interpretation of the statute. He submitted that the High Court has
rightly held that the definition of 'opium poppy' as given under Clause
(xvii) of Section 2 of the 1985 Act is in two parts. He submitted that, as
per sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act, 'opium
poppy' means "the plant of the species 'papaver somniferum L", whereas
sub-clause (b) thereof empowers the Central Government to notify any
other species of 'papaver' from which 'opium' or any 'phenanthrene
alkaloid' can be extracted. It is therefore submitted that, unless any other
species of 'papaver' from which 'opium' or any 'phenanthrene alkaloid'
can be extracted is notified by the Central Government, the same cannot
be considered to be 'opium' for the purpose of the 1985 Act. It is submitted
that, as such, unless the prosecution proves that the genus of the material
seized was a species of 'papaver somniferum L', the conviction could
not be sustained. He, therefore, submitted that no interference would be
warranted with the judgment of the High Court. The other counsel have
adopted the submissions advanced by Shri Jain.
15. Shri Nataraj, learned ASG also submitted that since the 1985
Act is both penal and beneficial, the interpretation which advances the
purpose of the Act will have to be preferred. The learned ASG relies on
the judgment of this Court in the case of NEPC Micon Limited (supra).
16. Shri Parameshwar, learned amicus curiae submitted that the
following three issues arise for consideration in the present matter:
(i)
When the statute identifies only one species as contraband
material and when the legislature leaves it open to the Central
Government to notify any other species, it will not be
permissible for the State to argue that a test which will
prove that the contraband material belongs to the species
of 'papaver somniferum L' is not necessary;
(ii)
What is the appropriate test to identify that the contraband
belongs to the species of 'papaver somniferum L'; and
(iii)
Whether the first question is relevant only for 'poppy husk'
or 'poppy straw' or for all other forms of 'poppies'?
4(1999) 4 SCC 253
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17. Shri Parameshwar submitted that there are three families of
narcotic drugs which are dealt with by the statute, namely, 'opium',
'cannabis (hemp)' and 'coca leaf'. He submitted that it is only the plant
of 'papaver somniferum L' which contains 'opium'. He fairly submitted
that the earlier enactments only recognized 'papaver somniferum L' as
a source for 'opium'. It is only the 1985 Act which has also included
sub-clause (b) in Clause (xvii) of Section 2 which provides for any other
species of 'papaver' from which 'opium' or any 'phenanthrene alkaloid'
can be extracted. However, such a species, to come under the provisions
of the 1985 Act, is required to be notified by the Central Government.
He fairly submitted that no such notification recognizing any other species
of 'papaver' has been notified by the Central Government.
18. Shri Parameshwar also agrees with the submissions made by
Shri Mukerji that India is also obligated to honour its obligations as per
the decisions taken in various International Conventions. Shri
Parameshwar has also taken us through different statutes, enacted by
different countries to highlight the relevant provisions with regard to
'opium'. Shri Parameshwar has also taken us to the judgment rendered
by Justice Hidayatullah in the case of Baidyanath Mishra and Another
v. The State of Orissa5, wherein this Court held that when evidence
shows that it could be 'opium', it will not be necessary to conduct any
further analysis. However, he submitted that the said position would no
longer be valid in view of the subsequent judgment of this Court in the
case of Harjit Singh v. State of Punjab6, wherein this Court considered
the provisions of the 1985 Act and held that chemical analysis of the
contraband material is essential to prove a case against the accused
under the 1985 Act. Shri Parameshwar submitted that the Gujarat High
Court in the case of Hathi @ Mangalsinh Ramdayalji v. State of
Gujarat7 as well as the Himachal Pradesh High Court in the cases of
Rajiv Kumar alias Guglu v. State of H.P.8 and State of H.P. v. Des
Raj9 have taken a similar view. Shri Parameshwar fairly submitted that,
as amicus curiae, he has placed both the sides before this Court and it
is for this Court to take a view in the interest of justice.
5 1968 (XXXIV) Cuttack Law Times-I
6 (2011) 4 SCC 441
7 1992 SCC OnLine Guj 311
8 2007 SCC OnLinee HP 120
9 2013 SCC OnLine HP 371
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Legislative History:
19. For appreciating the controversy, it will be relevant to refer to
the legislative history prior to the present enactment, i.e., the 1985 Act
coming into force.
20. The first of such enactments was the Opium Act, 1857 (for
short, "1857 Act"), which was enacted for preventing illicit cultivation of
'poppy' and for regulating the cultivation of 'poppy' and the manufacture
of 'opium' on account of Government. However, the 1857 Act does not
define 'opium'. Thereafter in the year 1878, the Opium Act, 1878 (for
short, "1878 Act") was enacted to amend the laws relating to 'opium',
wherein 'opium' was defined as under:
"3. Interpretation clause. - .............
'Opium' means-
(i) the capsules of the poppy (papaver somniferum, L), whether
in their original form or cut, rushed or powdered, and whether or
not juice has been extracted therefrom;
(ii) the spontaneously coagulated juice of such capsules which
has not been submitted to any manipulations other than those
necessary for packing and transport; and
(iii) any mixture with or without natural materials, of any of the
above forms of opium;
but does not include any preparation containing not more than 0.2
per cent of morphine, or a manufactured drug as defined in Section
2 of the Dangerous Drugs Act, 1930;"
21. Thereafter, the Dangerous Drugs Act, 1930 (for short, "1930
Act") came to be enacted. The 1930 Act came to be enacted in pursuance
to the Second International Opium Conference (Geneva Convention).
The preamble of the 1930 Act would reveal that the Contracting Parties
to the said Geneva Convention resolved to take further measures to
suppress the contraband trafficking and abuse of dangerous drugs,
especially those derived from 'opium', 'Indian hemp' and 'coca leaf'. It
defined 'opium' in Clause (e) of Section 2 as under:
"2. Definitions. .............
(e) "opium" means
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(i)
the capsules of the poppy (Papaver somniferum L.);
(ii)
the spontaneously coagulated juice of such capsules which
has not been submitted to any manipulations other than those
necessary for packing and transport; and
(iii)
any mixture, with or without neutral materials, of any of the
above forms of opium; but does not include any preparation
containing not more than 0.2 per cent of morphine;"
22. It would also be relevant to refer to the definition of 'opium'
as found in the Maharashtra Prohibition Act, 1949 (for short, "1949 Act"),
which reads thus:
"(30) "opium" means -
(a) The capsules of the poppy (Papaver Somaniforum L), [whether
in their original form or cut, or crushed or powdered and whether
or not the juice has been extracted therefrom;
(b) The spontaneously coagulated juice of such capsules which
has not been submitted to any manipulation other than those
necessary for packing and transport; and
(c) Any mixture with or without neutral materials of any of the
above forms of opium;
but does not include any preparations containing not more than
0.2 percent of morphine, or a manufactured drug as defined in
section 2 of the Dangerous Drugs of Act, 1930."
23. Thereafter, the present Act, i.e., the 1985 Act came to be
enacted in the year 1985. It will be relevant to refer to the Statement of
Objects and Reasons of the 1985 Act, which reads thus:
"STATEMENT OF OBJECTS AND REASONS
The statutory control over narcotic drugs is exercised in India
through a number of Central and State enactments. The principal
Central Acts, namely, the Opium Act, 1857, the Opium Act, 1878
and the Dangerous Drugs Act, 1930 were enacted a long time
ago. With the passage of time and the developments in the field of
illicit drug traffic and drug abuse at national and international level,
many deficiencies in the existing laws have come to notice, some
of which are indicated below:
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(i) The scheme of penalties under the present Acts is not
sufficiently deterrent to meet the challenge of well organized gangs
of smugglers. The Dangerous Drugs Act, 1930 provides for a
maximum term of imprisonment of 3 years with or without fine
and 4 years imprisonment with or without fine for repeat offences.
Further, no minimum punishment is prescribed in the present laws,
as a result of which drug traffickers have been some times let off
by the courts with nominal punishment. The country has for the
last few years been increasingly facing the problem of transit
traffic of drugs coming mainly from some of our neighboring
countries and destined mainly to Western countries.
(ii) The existing Central laws do not provide for investing the
officers of a number of important Central enforcement agencies
like Narcotics, Customs, Central Excise, etc., with the power of
investigation of offences under the said laws.
(iii) Since the enactment of the aforesaid three Central Acts a
vast body of international law in the field of narcotics control has
evolved through various international treaties and protocols. The
Government of India has been a party to these treaties and
conventions which entails several obligations which are not covered
or are only partly covered by the present Acts.
(iv) During recent years new drugs of addiction which have come
to be known as psychotropic substances have appeared on the
scene and posed serious problems to national governments. There
is no comprehensive law to enable exercise of control over
psychotropic substances in India in the manner as envisaged in
the Convention on Psychotropic Substances, 1971 to which India
has also acceded."
24. It could thus be seen that the 1985 Act came to be enacted
since the three earlier enactments, i.e., the 1857 Act, the 1878 Act and
the 1930 Act were enacted a long time ago. It was also noticed that
there were developments in the field of illicit drug trafficking and drug
abuse at the national and international level. Many deficiencies had come
to notice in the three earlier enactments including the inadequacy of
penalties. It was also noticed that the existing central laws did not provide
for vesting a number of important Central enforcement agencies with
the power of investigation of offences under the said laws. It was also
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noticed that, since the earlier three enactments came into existence,
various international treaties and protocols were evolved. The
Government of India was a party to these treaties and conventions which
entail several obligations which are not covered under the earlier three
enactments. Thus, it was felt that there was an urgent need for the
enactment of a comprehensive legislation of narcotic drugs and
psychotropic substances.
25. The 1985 Act defined 'opium', 'opium derivative', 'opium
poppy', 'poppy straw' and 'poppy straw concentrate' under Clauses
(xv), (xvi), (xvii), (xviii) and (xix) of Section 2, which read thus:
"2. Definitions . -
(xv) "opium" means-
(a) the coagulated juice of the opium poppv; and
(b) any mixture, with or without any neutral material, of the
coagulated juice of the opium poppy,
but does not include any preparation containing not more than 0.2
per cent. of morphine:
(xvi) "opium derivative" means-
(a) medicinal opium, that is, opium which has undergone the
processes necessary to adapt it for medicinal use in accordance
with the requirements of the Indian Pharmacopoeia or any other
pharmacopeia notified in this behalf by the Central Government,
whether in powder form or granulated or otherwise or mixed
with neutral materials;
(b) prepared opium, that is, any product of opium by any series
of operations designed to transform opium into an extract
suitable for smoking and the dross or other residue remaining
after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine
and their salts:
(d) diacetylmorphine, that is, the alkaloid also known as
diamorphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of
morphine or containing any diacetylmorphine;
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(xvii) "opium poppy" means-
(a) the plant of the species Papaver somriferum 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;
(xviii) "poppy straw" means all parts (except the seeds) of the
opium poppy after harvesting whether in their original form or
cut, crushed or powdered and whether or not juice has been
extracted therefrom;
(xix) "poppy straw concentrate" means the material arising when
poppy straw" has entered into a process for the concentration of
its alkaloids;"
26. In the present case, we are concerned with the conviction in
relation to 'poppy straw'. 'Poppy straw' has been defined to mean all
parts of 'opium poppy' after harvesting, whether in their original form or
cut, crushed or powdered and whether or not juice has been extracted
therefrom. However, the said definition excludes the seeds. As such,
'poppy straw' would mean all parts of 'opium poppy' except the seeds.
Therefore, for bringing home the guilt of the accused for contravention
in relation to 'poppy straw', it will be relevant to refer to the definition of
'opium poppy'. 'Opium poppy' has been defined under Clause (xvii) of
Section 2 of the 1985 Act which has been reproduced hereinabove. As
per sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act, 'opium
poppy' means the plant of the species 'papaver somniferum L'.