If ‘Poppy Straw’ Is Proved To Contain Morphine And Meconic Acid, No Other Test Is Required: Supreme Court

CASE TITLE:
State Of Himachal Pradesh Vs. Nirmal Kaur @ Nimmo

DATE OF ORDER:
20 October 2022

JUDGES:
Justice BR Gavai and Justice CT Ravikumar

PARTIES:
Appellant: State of Himachal Pradesh
Respondent: Nirmal Kaur @ Nimmo

SUBJECT

The Supreme Court held in its judgement that it is sufficient to show that something is covered by Section 2(xvii)(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, once a Chemical Examiner establishes that the confiscated “poppy straw” indicates a positive test for the contents of “morphine” and “meconic acid”. No additional test would be required to prove that the confiscated substance is a component of “papaver somniferum L,” according to the bench of Justices BR Gavai and CT Ravikumar.

IMPORTANT PROVISIONS

Narcotic Drugs and Psychotropic Substances Act, 1985

• Section 2(xvii) (a) - “opium poppy” means the plant of the species Papaver somniferum L.
• Section 15 - Punishment for contravention in relation to poppy straw. - Whoever, in contravention of any provisions of this 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 or removes or does any act in respect of warehoused poppy straw shall be punishable

BRIEF FACTS

• When Sarbjeet Singh (PW-12) and other police officers were patrolling at Haroli in the Una District on July 25, 2003, Constable Upnesh Kumar (PW-1) informed them that the respondent-accused was engaging in the illegal trade of “poppy straw” and that she had kept a sizable quantity of “poppy straw” in the room where the cattle feed had been stacked.
• Following formalities, a raiding party was organised, and the respondent’s properties were searched. A bag containing 20 kg of “poppy husk” was discovered during the search in the room used for stacking fodder. Two samples, each 250 grammes in weight, were divided and sealed. Respondent was taken into custody. The respondent disclosed that she had hidden nine additional gunny bags of “poppy husk” on the side of a road close to Gurudwara Girgirga Sahib while she was being held by the police. As a result, one bag carrying 30 kg of “poppy husk” and eight gunny bags each containing 40 kg of “poppy husk” were found. Two samples, weighing a combined total of 250 grammes, were taken from each of these nine bags and packaged separately.
• A High Court appeal was made by the respondent. The High Court stated during the hearing that it did not believe the Chemical Examiner’s tests to determine whether “meconic acid” and “morphine” were contained in the sample material were sufficient to determine that the material was, in fact, “poppy straw.” As a result, the Chemical Examiner was called to testify in court by the High Court. The High Court found that the two tests carried out by the Chemical Examiner to determine whether the samples contained “meconic acid” and “morphine” did not show that the stuff examined consisted of either plant parts of the species of “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 pop.” The High Court ruled that the two tests alone could not support the conclusion that the material taken from the respondent and examined by the Chemical Examiner was “poppy straw.”
• The prosecution had failed to establish that the sample was “poppy straw” in the sense of the 1985 Act, the High Court further ruled. As a result, the respondent was not subject to conviction and punishment for the offence listed in and punished under Section 15 of the 1985 Act. As a result, the High Court granted the appeal in the impugned judgement dated 2 November 2007 and quashed the trial court’s decision, order of conviction, and sentence dated 29 November 2004. As a result of being wronged, the State chose to appeal to this Court.
• The prosecution had failed to establish that the sample was “poppy straw” in the sense of the 1985 Act, the High Court further ruled. As a result, the respondent was not subject to conviction and punishment for the offence listed in and punished under Section 15 of the 1985 Act. As a result, the High Court granted the appeal in the impugned judgement dated 2 November 2007 and quashed the trial court’s decision, order of conviction, and sentence dated 29 November 2004. As a result of being wronged, the State chose to appeal to this Court.

ISSUES RAISED

• 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?
• What is the appropriate test to identify that the contraband belongs to the species of ‘papaver somniferum L?
• Whether the first question is relevant only for ‘poppy husk’ or ‘poppy straw’ or for all other forms of ‘poppies’?

ARGUMENTS ADVANCED BY THE APPELLANT

• The learned counsel for the appellant submitted that the High Court’s perspective was wholly unfounded. The State is required under Article 47 of the Indian Constitution to make it illegal to use intoxicating beverages and substances that are harmful to one’s health, aside from when necessary for medical treatment. He said that the 1985 Act was passed in order to uphold both international conventions and constitutional obligations.
• He claimed that the alkaloids “morphine” and “codeine” are solely present in “papaver somniferum L”. In its Manual for Use by the National Drug Testing Laboratories, 1998, the United Nations International Drug Control Program recommended techniques for testing opium, morphine, and heroin. He claimed that the only tests that the United Nations recommends are the two that the appellant conducts. The “Working Procedure Manual: Narcotics” has been released by the Directorate of Forensic Science Services, Ministry of Home Affairs, Government of India, New Delhi. The aforementioned Manual includes the tests that must be performed to determine the presence of “opium/crude morphine” and “meconic acid.”
• He further stated that “morphine” and “meconic acid” are exclusively found in “papaver somniferum L,” which is the only species. Therefore, it is argued that the High Court’s determination that these two tests are insufficient to determine whether a species belongs to “Papaver somniferum L” and, as a result, is not criminal under Section 15 of the 1985 Act, does not establish a sound legal principle.

ARGUMENTS ADVANCED BY THE RESPONDENTS

• The learned counsel for the respondents submitted that the Court should favour a rigorous construction of the statute because the 1985 Act’s provisions are so onerous in nature. He argued that the High Court was correct in concluding that Clause (xvii) of Section 2 of the 1985 Act’s definition of “opium poppy” is divided into two parts.
• He argued that the term “opium poppy” refers to “the plant of the species “Papaver somniferum L”“ as defined by subclause (a) of Clause (xvii) of Section 2 of the 1985 Act, and that subclause (b) thereof authorises the Central Government to notify any other species of “papaver” from which “opium” or any “phenanthrene alkaloid” can be extracted.

JUDGMENT ANALYSIS

• The Court observed that it is clear that proving an accused person’s guilt within the parameters of Section 15 of the 1985 Act requires proving that the violation involved “poppy straw.” A combined reading of the definitions provided under Section 2’s Clauses (xvii) and (xviii) and Section 15 of the 1985 Act would show that, in order to prove the accused’s guilt, it will be essential to prove that the material that has been seized is a “opium poppy,” other than the seeds. As a result, it would be necessary to prove that the material was of the genus “opium poppy,” as that term is defined in Clause (xvii) of Section 2 of the 1985 Act.
• Since it is well known that “papaver somniferum L” contains “morphine” and “meconic acid,” we believe that after the two tests positively show that the sample of “poppy straw” contains “morphine” and “meconic acid,” requiring further proof that the illegal species only belongs to “papaver somniferum L” would be against the legislative intent.
• The central government should be given the authority to include any other “papaver” species that may be utilised for the manufacturing of “opium,” according to the honourable bench, and bring these species under the authority of the 1985 Act. The reason is that if it is discovered that any species of “papaver” is being used to produce “opium,” then the cultivation of that species should be prohibited, and it should also be subject to the prohibitory and regulatory procedures outlined in the 1985 Act.
• According to this Court, the clear intent of the clause was to safeguard citizens against fraud and deceit. Additionally, it was decided that the court could read a statute in a way that would carry out the legislative intent rather than in a way that would entirely or partially negate that intent. It was decided that making it legal to possess counterfeit notes other than Indian currency notes would undermine the legislature’s aim if the court limited the term “currency note” to solely refer to “Indian currency notes.”
• It is evident that this Court believed there was no justification for limiting the definition of the terms “officer or employee” to those who already hold those positions. It was decided that the aforementioned Section would directly apply in cases where an officer or employee unlawfully retains ownership of property after leaving a position, despite having lawfully acquired it during the course of their employment. The Court further stated that in order to achieve the goal and purpose of the Act, the court must interpret the clause broadly and liberally. It is best to choose the interpretation that stops the problem and advances the solution.
• Thus, it was clear that the Constitution Bench believed that courts must adopt interpretations that further the goals of legislation. It was decided that any provision of the Act must be interpreted in a way that advances the goal of the legislation so that the criminal justice system can deal with offenders effectively.
• Reading through the aforementioned observations will show that this Court held that, even with regard to a penal statute, any literal and lexical construction, no matter how narrow and pedantic, may not always have direct application. Instead, the interpretation must be preferred with regard to the nature of the offence and the goal of the law. Even though there may be some inexactitude in the wording used, the interpretation that goes against the legislature’s clear objective must be rejected. It has been said that in order to get an effective outcome, the golden construction must be embraced.

CONCLUSION

It was determined that a comprehensive law needed to be passed in light of the fact that the country had been confronted with the issue of drug trafficking for many years, which had caused major issues for both the State and the Center administrations. Thus, it is obvious that the main goal of the new law was to reduce the threat of drug and psychiatric substance trafficking. Therefore, it is preferable to interpret the law in a way that furthers the Act’s goals than to apply a mechanical and pedantic approach. The respondent(s) accused must appear because the High Court’s ruling and order have been overturned. Until the High Court rules on the merits of the case, the punishment is on hold. In the terms stated above, the appeal is granted. Any pending applications will be resolved in accordance with the aforementioned terms. No cost-related order.

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