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2022 (10) TMI 873
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....ed 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' on the side of khad near Gurudwara Girgirga Sahib. Accordingly, eight gunny bags each containing 40 Kgs. of 'poppy husk' and one bag....
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....side 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 med....
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.... 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 Singh (2000) 5 SCC 88, Swantraj....
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....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'? 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 ....
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.... 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 (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....
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....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 ....
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...."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 contraventio....
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.... or removes or does any act in respect of warehoused poppy straw shall be punishable with rigorous imprisonment of minimum one year up to twenty years depending on the quantity and also a fine which may extend to minimum ten thousand rupees up to two lakh rupees. 29. It could thus be seen that, for bringing home the guilt of the accused within the ambit of Section 15 of the 1985 Act, it is necessary to establish that the contravention is in relation to 'poppy straw'. A combined reading of the definition given under Clauses (xvii) and (xviii) of Section 2, and Section 15 of the 1985 Act would reveal that, for bringing home the guilt of the accused, it will be necessary to establish that the seized material collected is any part of 'opium poppy' except the seeds. As such, what would be required to establish is that the genus of the seized material is 'opium poppy' as defined under Clause (xvii) of Section 2 of the 1985 Act. 30. The question that requires to be considered is as to 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 Section 2 of the 1985 Act or ....
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....the desired results could be achieved only by close collaboration between the contracting parties, at the United Nations Opium Conference of 1953, the "Protocol for Limiting and Regulating the Cultivation of the 'poppy plant', the Production of, International and Wholesale Trade in, and use of Opium" (hereinafter referred to as "the 1953 Protocol) came to be resolved. It will be relevant to refer to the definitions of 'poppy', 'poppy straw' and 'opium' provided in the said Protocol, which read thus: "Poppy" means the plant Papaver somniferum L., and any other species of Papaver which may be used for the production of opium; "Poppy straw" means all parts of the poppy after mowing (except the seeds) from which narcotics can be extracted; "Opium" means the coagulated juice of the poppy in whatever form including raw opium, medicinal opium, and prepared opium, but excluding galenical preparations;" 36. The efforts to combat the menace of drugs at the international level continued. Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind, and conscious of the duty to....
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....apaver somniferum L., and any other species of Papaver which may be used for the production of opium". 3. Should any plant which is considered not to be a variety of the species Papaver somniferum L., but another species of the genus Papaver, be found to yield opium, the plant itself and its product would not be covered by the control provisions of the Single Convention, but only by those of the Protocol. The coagulated juice of the plant would for the purposes of the Single Convention not be "opium" but could by the operation of article 3 of the Single Convention be listed in Schedule I and become a "drug" of Schedule I - like the "opium" obtained from the species "Papaver somniferum L." - and thus be placed under the regime provided by the Single Convention for drugs in this Schedule. Its separation from the plant, not being "opium poppy" within the meaning of the Single Convention, would also not be "production", but "manufacture". Another way of handling such a situation would be an amendment of the definition of opium poppy so as to cover the additional species found to yield opium. It might in such a case be possible to obtain for such a revision the consensus of the....
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.... The said dictionary would reveal that 'opium poppy' was cultivated for the production of 'opium' and for 'poppy seeds'. In India, cultivation of 'poppy' for 'opium' was established by the early sixteenth century and was a considerable source of revenue for successive governments. It also noted that 'opium' was freely sold as an intoxicant within the country and exported for the same purpose to the far-eastern countries, particularly China. This resulted in the high acreage under 'opium poppy' cultivation in the early part of the present century. The flagrant misuse of 'opium' and its deleterious effects physically, mentally and morally became so widespread that it became a serious social problem in many countries. As a result of an agreement with China to progressively reduce the export of 'opium' to that country, the total area under 'poppy' cultivation substantially declined in 1960-1961. Further, the Government of India decided in the year 1949 to stop 'opium' consumption for non-medical and quasi-medical uses in the country completely by 1958-1959. 42. It will be apposite to reproduce the relevant extracts from the 1966 Dictionary as under: "CHEMICAL COMPOSITION ....
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....'morphine' is obtained from 'opium'. It further states that 'opium' is the dried milky juice obtained from the unripe seed pods of 'papaver somniferum L'. It also notices that 'morphine' has also been reported to be present in 'papaver setigerum', and as a minor alkaloid in 'papaver decaisnei' and 'papaver rhoeas'. It further notices that there is no known instance of these poppies being used for 'opium' production. It also notices that a recent work has cast considerable doubt as to the presence of 'morphine' in 'papaver rhoeas'. The 1998 Manual also shows that the following major alkaloids are found in 'raw opium': MAJOR ALKALOIDS FOUND IN RAW OPIUM Alkaloids min% avg% max% MORPHINE 3.1 11.4 19.2 CODEINE 0.7 3.5 6.6 THEBAINE 0.2 3.1 10.6 PAPAVERINE <0.1 3.2 9.0 NOSCAPINE 1.4 8.1 15.8 46. The 1998 Manual, on research, shows six major constituents in 'opium' and 'crude morphine' samples, viz., 'morphine', 'codeine', 'thebaine', 'papaverine', 'noscapine', and 'meconic acid'. 47. Another publication titled as "Analysis of Plant Poisons" authored by Dr. M.P. Goutam and Smt. Shubhra Goutam establishes that....
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.... plate, add one drop of reagent. Appearance of brown purple colour indicates the positive test for the presence of meconic acid. This meconic acid is present in raw and prepared opium, but it will not be detected in crude morphine. Preparation of Ferric Salt Reagent: Dissolve 1 g of ferric sulphate in 20 ml of water. Alternate Test of Meconic Acid [2] : c) Ferric Chloride Test: Dissolve appropriate sample of opium in water and add a drop of dilute hydrochloric acid by few drops of 10% solution of ferric chloride. A red colour is appeared. Divide this solution into two parts. Take first part and add dilute hydrochloric acid to it in excess and warm. The red colour of the solution remains there. Take the second part and add a solution of mercuric chloride. The colour of the solution does not affect. Preparation of Mercuric Chloride Reagent: Dissolve 5 gms. mercuric chloride in 100 ml of water. Dilute Hydrochloric Acid [3]: About 10% W/W of HC1 in water Porphyroxine Test [1]: Take a small amount of suspected material on a spot plate and add two drops of water. Triturate it with glass rod. Take one drop of brown liquid from this mix....
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....otographic Material Company v. Comptroller General of Patents, Designs and Trade Marks [LR (1898) AC 571 at 576] Earl of Halsbury reaffirmed the Rule as follows: "My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion." It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief." 54. The law laid down in the case of The Bengal Immunity Company Limited (supra) has been consistently followed by this Court. We will therefore have to examine the following four factors: (i) What was the position before the enactment of the 1985 Act? ....
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....ocols and as such, it was found necessary to bring out a consolidated enactment. 58. Viewed from this angle, it is clear that the legislature was aware that the plant of species 'papaver somniferum L' which contained 'morphine' and 'meconic acid' was used for the production of 'opium'. However, it was also noticed that there could be some other species of 'papaver' from which 'opium' or any other 'phenanthrene alkaloid' could be extracted. In this background, Clause (xvii) of Section 2 of the 1985 Act was divided into two parts. In view of sub-clause (a) of Clause (xvii) thereof, the plant of the species 'papaver somniferum L', which was already known to be used for production of 'opium' was meant to be 'opium poppy' for the purpose of the 1985 Act. However, in view of sub-clause (b) of Clause (xvii) thereof, the legislature provided discretion with the Central Government to declare the plant of any other species of 'papaver' from which 'opium' or any 'phenanthrene alkaloid' could be extracted to be 'opium poppy' for the purpose of the 1985 Act. 59. The legislature, being aware that scientific studies undisputedly establish that 'papaver somniferum L' contains 'morphine' and ....
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....in the earlier enactments, there was also a possibility of other variety of 'papaver' being used for 'opium' production, but could not be brought under the prohibitory and regulatory measures. This position would also be clarified by the observations made in the said Commentary referred to hereinabove. 64. The remedy, in our view, which the Parliament has provided is by way of incorporating sub-clause (b) in Clause (xvii) of Section 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. 65. The true reason for the remedy, in our view, is 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 is 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. Purposive Int....
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.... a currency note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency note. Would the legislature in its wisdom and anxiety to protect the unwary citizens extend immunity from being cheated in relation to Indian currency notes but show total unconcern in regard to their being cheated in respect of currency notes issued by any foreign State or sovereign power? ......." [emphasis supplied] 68. This Court holds that the manifest purpose of the provision was that the citizens should be protected from being deceived or cheated. It was also held that the court can make a purposive interpretation so as to effectuate the intention of the legislature and not a purposeless one in order to defeat the intention of the legislators wholly or in part. It held that, if the court restricts the expression 'currency note' only to 'Indian currency note', it would defeat the intention of the legislature inasmuch as the court makes it lawful to possess counterfeit notes other than Indian currency notes. 69. In the case of Baldev Krishna Sahi v. Shippin....
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....y well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment. That appears to be one of the functions of clause (b). It would be noticed that clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act. That would primarily apply to the present officers and employees and may also include past officers and employees. There is therefore no warrant to give a restrictive meaning to the term "officer or employee" appearing in sub-section (1) of Section 630 of the Act. It is quite evident that clauses (a) and (b) are separated by the word "or" and therefore are clearly disjunctive." [emphasis supplied] 70. It is thus clear that this Court held that there was no reason to restrict the meaning of the term "officer or employee" to the existing officers or employees. It held that a situation where an officer or employee, though having lawfully obtained the possession of s....
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....se would permit exclusion from its ambit of the persons not intended to be covered by it while ensuring that any person meant to be governed by its provisions, will not escape the provisions of the TADA Act, which is the true object of the enactment. Such a course while promoting the object of the enactment would also prevent its misuse or abuse. Such a danger is not hypothetical but real in view of serious allegations supported by statistics of the misuse of provisions of the TADA Act and the concern to this effect voiced even by the National Human Rights Commission. 15. It is the duty of courts to accept a construction which promotes the object of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does not affect its constitutionality or construction. Abuse has to be checked by constant vigilance and monitoring of individual cases and this can be done by screening of the cases by a suitable machinery at a high level. It is reported that in some States, after the decision of this Court in Kartar Singh [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , high-powered committees have been constituted for screening all such cas....
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....acted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it." 11. Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it." 74. It could be seen that this Court held that a social legislation like the Prevention of Corruption Act, 1988, intended to curb the illegal activities of the public servants, should be liberally construed so as to advance its object. It was held that the overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it. 75....
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....han reject it as a nullity.' 120. It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [1926 AC 37 : 95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin said : (AC p. 52) 'A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.' " 26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. ......" 76. A perusal of the aforesaid observations would reveal that this Court held that, even in relation ....
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.... 24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is "what is true construction of the statute?" A passage in Craies on Statute Law, 7th Edn. reads to the following effect: "The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. 'All modern Acts are framed with regard to equitable as well as legal principles.' 'A hundred years ago,' said the court in Lyons' case [Lyons v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , 'statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature." At p. 532 of the same book, observations of Sedgwick are quoted as under: "The more correct version of the doctrine appears to be that statutes of this class are to be fairly const....
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....ed, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. ... Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.' " Thereafter, it is further observed that to winch up the legislative intent, it is permissible for courts to take into account the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. It is further observed that in given circumstances, it is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its ....
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....f 'papaver somniferum L'. The scientific study conducted at the national as well as the global level establishes that 'papaver somniferum L' consists of 'morphine' and 'meconic acid'. If the construction as adopted in the impugned judgment is to be accepted, then, even if it is found that the Chemical Examiner's report establishes that the contraband article contains 'morphine' and 'meconic acid', a person cannot be convicted unless it is further established that the contraband material has a genesis in 'papaver somniferum L'. 83. Shri Kapil Sharma, Chemical Examiner was present in the Court. He reiterated that the 'morphine test' and the 'meconic test' are the only two tests available worldwide to establish that the contraband material is derived from 'papaver somniferum L'. As already discussed hereinabove, 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 productio....
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....at, what was recovered from the appellant therein was 'manufactured drug' within the meaning of Section 2(xi) of the 1985 Act. The Court therefore held that the offence proved against the appellant therein clearly fell within Section 21 of the 1985 Act for illicit possession of a 'manufactured drug'. We fail to understand as to how the said judgment could be said to be a proposition for holding that, unless the Chemical Examiner's report establishes that the contraband material was derived from the species of 'papaver somniferum L', conviction under Section 15 of the 1985 Act would not be tenable. 87. Insofar as the judgment of this Court in the case of Baidyanath Mishra (supra), to which a reference has been made by Shri Parameshwar, is concerned, this Court, in the case of Harjit Singh (supra), has itself held that the said case was decided under the Opium Act and not under the 1985 Act. It has been held that the chemical analysis of the contraband material is essential to prove a case against the accused under the 1985 Act. 88. We are therefore of the considered view that the High Court was not justified in holding that, even after the Chemical Examiner's report establishe....