2022 (10) TMI 873 - SC - Indian Laws

Drug Trafficking - Species of the contraband recovered - poppy husk - poppy straw - necessity for the prosecution to bring in materials to show as to what was the species of the contraband recovered - NDPS 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 Section 2 of the 1985 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? HELD THAT - 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 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 covered or were only partly covered under the old Acts. 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 1878 Act so also the 1930 Act 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 - 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 . 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. 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 - 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 sub-clause (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. Appeal allowed.

Summary

Issues Involved:
1. Whether it is necessary to particularize the species of the contraband recovered - poppy husk, poppy straw, etc.?
2. Whether it is sufficient for the prosecution to prove that the recovered sample is poppy straw without specifying its species?

Detailed Analysis:

Issue 1: Particularizing the Species of the Contraband
The court examined whether it is necessary to specify the species of the contraband recovered, such as poppy husk or poppy straw. The factual background involved the recovery of poppy husk from the respondent's premises, which was later confirmed by the Chemical Examiner to contain poppy husk. The respondent was initially convicted but acquitted by the High Court on the grounds that the tests conducted were insufficient to conclusively prove that the contraband was poppy straw within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (1985 Act). The High Court required the prosecution to prove that the contraband was derived from the species 'papaver somniferum L' or any other species notified by the Central Government.

Issue 2: Sufficiency of Proving the Sample as Poppy Straw
The court deliberated on whether proving that the sample contained poppy straw was sufficient without specifying its species. The legislative history and international conventions were reviewed, showing that 'papaver somniferum L' was historically recognized as the primary source of opium. The court noted that scientific studies established that 'papaver somniferum L' contains morphine and meconic acid, which are indicators of opium. The 1985 Act defined 'opium poppy' to include 'papaver somniferum L' and any other species notified by the Central Government. The court emphasized that the legislative intent was to include any species of poppy used for opium production within the regulatory framework of the 1985 Act.

Legislative History and International Developments:
The court traced the evolution of laws from the Opium Act, 1857, to the Dangerous Drugs Act, 1930, and the 1985 Act, noting the increasing international efforts to combat drug trafficking. The 1985 Act was enacted to address deficiencies in earlier laws and to comply with international treaties. The court highlighted that the definition of 'opium poppy' in international conventions consistently included 'papaver somniferum L' and, in some cases, other species of papaver.

Scientific Studies:
The court reviewed scientific literature, including the 1966 Dictionary and the 1998 Manual, which confirmed that 'papaver somniferum L' contains significant quantities of morphine and meconic acid. The court concluded that the presence of these substances in a sample is sufficient to establish that it is derived from 'papaver somniferum L'.

Principles of Interpretation:
The court applied the Mischief Rule and purposive interpretation principles, emphasizing that statutes should be interpreted to advance their purpose. The court rejected a narrow interpretation that would require proving the specific species of poppy, as it would frustrate the legislative intent of the 1985 Act to curb drug trafficking.

Conclusion:
The court held that once a Chemical Examiner's report establishes that the contraband contains morphine and meconic acid, it is sufficient to prove that it is derived from 'papaver somniferum L'. The High Court's requirement for further proof of the species was deemed unnecessary and contrary to the legislative intent. The appeal was allowed, and the matter was remanded to the High Court for reconsideration in light of this interpretation. The respondent's sentence was suspended until the High Court's decision on the merits.