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CASE NO.: Special Leave Petition (crl.) 73  of  2000 Special Leave Petition (crl.)   4141     of  1999

PETITIONER: AJAIB SINGH

       Vs.

RESPONDENT: VS.

DATE OF JUDGMENT:       11/04/2000

BENCH: K.T. Thomas, Doraiswamy Raju & S.N. Variava.

JUDGMENT:

S. N. Variava, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Both  these  Appeals can be disposed of by  this  common Order.

   Appellants  in both appeals were convicted separately by two  separate trial courts under Section 15 of the Narcotics Drugs  and Psychotropic Substances Act, 1985 (for short  the ’NDPS Act’).  Each of them was sentenced to undergo rigorous imprisonment  for  ten years and a fine of Rupees one  lakh. In  default of payment of fine Appellant Ajaib Singh was  to undergo  rigorous  imprisonment for a period of three  years and  Appellant  Sapinder  Singh   was  to  undergo  rigorous imprisonment  for a period of one year.  They filed separate appeals  and the High Court of Punjab and Haryana  dismissed their  appeals by separate judgments and those judgments are now  impugned before us.  Appellant Ajaib Singh was found to be in possession of 10 kilograms of Poppy husks on 4.6.1996. Appellant Sapinder Singh was found to be in possession of 10 bags  each  containing  34  kilograms   of  poppy  husks  on 23.12.1993.   The  common  question  involved  in  both  the appeals  is  whether  poppy  husks  would  fall  within  the expression "poppy straw".

   When  the SLPs were heard this Court was not inclined to entertain  the SLPs.  However, it was submitted, in both the SLPs,  that the Appellants had been convicted under  Section 15  of the NDPS Act.  It was submitted that Section 15 deals with  offences  relating to "poppy straw", whereas what  had been recovered from the Appellants was "poppy husk".  It was submitted  that the Appellants could not have been convicted unless the offence alleged against them fell strictly within the  provisions  of the NDPS Act.  It was submitted that  if the  NDPS Act did not provide for any offence in respect  of "poppy husk" then the convictions could not be maintained.

   As  a question of law was being raised notice was issued

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limited to this question.

   Parties  have been heard on the limited question of law. It  must  be mentioned that arguments have proceeded  on  an admitted  footing that what had been recovered from both the Appellants was "husk" of the opium poppy plant i.e.  husk of the plant of the species "Papaver".

   Before  the arguments of the parties are considered  the relevant provisions of the NDPS Act may be set out :

   Section 2(xv) "opium" means;

   (a) the coagulated juice of the opium poppy;  and

   (b)  any mixture, with or without any neutral  material, of the coagulated juice of the opium poppy,

   (c)  but does not include any preparation containing not more than 0.2 per cent of morphine.

   Section 2(xvii) "opium poppy" means -

   (a) the plant of the species Papaver sommiferum 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;

   Section  2(xviii) ’poppy straw’ means all parts  (except the  seeds)  of the opium poppy after harvesting whether  in their original or cut, crushed or powered and whether or not juice has been extracted therefrom."

   "Section  15.  Punishment for contravention in  relation of  poppy  straw.   -  Whoever,   in  contravention  of  any provision 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 with rigorous imprisonment for a term  which  shall not be less than ten years but which  may extend  to  twenty  years and shall also be liable  to  fine which  shall not be less than one lakh rupees but which  may extend to two lakh rupees:

   Provided  that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

   Mr.   O.P.   Sharma  for the Appellant Ajaib  Singh  has submitted  that  the  offence under Section 15  is  only  in respect of producing, possessing, transporting, importing or exporting   inter-State,  selling,   purchasing,  using   or omitting  to  warehouse "poppy straw".  Mr.  Sharma  submits that the terms "poppy straw" as defined in Section 2(xviii), "opium  poppy" as defined in Section 2(xvii) and "opium"  as defined  in Section 2 (xv) all have a common ingredient i.e. "opium".   He  submits  that a conjoint reading of  all  the above  mentioned sub- clauses shows that an offence can only

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be  in relation to a substance which contains more than  0.2 per cent of morphine.  He submitted that the "poppy husk" is non-narcotic.   It  submitted  that  it has  thus  not  been defined  anywhere or made punishable under the NDPS Act.  He submitted  that "poppy husk" does not contain more than  0.2 per  cent  of morphine and thus no offence could be said  to have  been made out.  He submitted that "poppy husk" is  not "poppy  straw"  and  that  there   can  be  no  offence  for possession of "poppy husk".

   Mr.   Rao Ranjit for Appellant Sapinder Singh  supported Mr.   Sharma.  He further submitted that the chemical report shows  that what was recovered was "chura post poppy heads". He  relied  upon certain passages from Modi’s Text  Book  of Medical Jurisprudence & Toxicology wherein it is, inter alia stated as follows :

   "Poppy  seeds  (khas-khas)  are innocuous and  white  in colour, used as a constituent in some foods or are sprinkled over  some Indian sweets.  It is regarded as a demulcent and a  nutritive.   The seeds yield a bland oil, known as  poppy seed  oil  (khas  khas ka tgel), which is largely  used  for culinary and lighting purposes"

   He also showed to Court the definition of the term poppy in  the Shorter Oxford Dictionary and Webster’s  Dictionary. He  also showed to Court the definition of the term husk  in Webster’s  Dictionary.   He submitted that the NDPS Act  was dealing  with substances which affect the cerebral functions and/or the peripheral nervous system and/or the functions of the  body.   He submitted that it is clear that  the  "poppy husk" would not have any somniferous poisons which affect on the  Central Nervous System of the body.  He submitted  that "poppy husk" was merely the waste on the top covering of the seed.   He  submitted  that the "poppy husk"  was  part  and parcel  of  the seed.  He submitted that if it  was  removed from  the  seed  it  becomes waste  which,  by  itself,  was worthless.   He submitted that Section 2(xviii) specifically provides  that  "seed" is not "poppy straw".   He  submitted that  "poppy husk" being part and parcel of "seed" would not fall within the definition of the term poppy straw.

   On  the other hand Shri Rajiv Dutta, learned counsel for the respondent - State, has submitted that the provisions of the  NDPS  Act  are  very clear.  He  submitted  that  under Section  15  an  offence is committed if  anybody  produces, possesses,   transports,   imports    inter-State,   exports inter-State,  sells,  purchases, uses or omits to  warehouse "poppy  straw".  He submitted that the offence under Section 15  is  different  from the offence under Section  18  which deals  with  "opium poppy" and "opium".  He  submitted  that "poppy  straw"  has  been defined under the  NDPS  Act.   He submits  that  it includes all parts of "opium  poppy".   He points  out that the terms "opium poppy" means the plant  of the species Papaver.  He submitted that the term "all parts" would  also include the "husk".  He submitted that the  husk was  not  worthless.   He submitted that it was not  at  all necessary  that  the  "husk" form part of  the  "seed".   He submitted  that  "seed" has been excluded, because in  India the  "seed"  is  used  as  constituent  in  foods  and  even sprinkled  over some Indian sweets.  He pointed out that the seed  also  yields  a bland oil, which is largely  used  for culinary  and  lighting purposes.  He submitted that for  an offence  under  Section 15 it was not at all necessary  that there must be more than 0.2 per cent of morphine in the item

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which has been seized.

   Mr.   Dutta  also  submitted that this  point  is  being raised for the first time in the Appeals and that it had not been  taken  up before the lower courts.  He submitted  that such  a  point  should not be allowed to be raised  for  the first time in the Appeal.

   It is undoubtedly true that this point is being taken up for the first time in the Appeal.  However, it is a point of law  which would have a bearing on a large number of  cases. We,  therefore,  permit the Appellants to raise this  point. It is a point of law which requires to be decided.

   We are unable to accept the arguments of Mr.  Sharma and Mr.   Rao.   Under Section 15 the offence is in  respect  of "poppy  straw".   Even though the term "poppy husk" has  not been  defined  in NDPS Act, the term "poppy straw" has  been defined.   The term "poppy straw" includes all parts (except the  seeds)  of the "opium poppy".  "Opium poppy" means  the plant  of the species Papaver.  Thus except for the seed all other  parts of the plant of the species Papaver would  fall in  the  term "poppy straw".  To be noted that parts of  the plant  Papaver would fall within the term "poppy straw" even though  no  juice  has  been extracted  therefrom.   For  an offence  under  Section 15 it is not at all  necessary  that "poppy  straw"  should have been used or made into  "opium". For  cultivation,  producing,   manufacturing,   possessing, selling,  purchasing,  transporting, importing or  exporting inter-State  or  using  opium there is  a  separate  offence provided  for  under Section 18.  If the alleged offence  is under  Section  18, then the question may arise whether  the preparation  contained  more than 0.2 per cent of  morphine. For  an  offence under Section 15, question  of  considering whether  the preparation contains more than 0.2 per cent  of morphine does not arise.  As seen above even though no juice may  have  been  extracted, so long as it is a  Papaver,  it would  still  be "poppy straw" if it is a part of the  plant Papaver.

   The   Modi’s  Text  Book  of  Medical  Jurisprudence   & Toxicology  says  that  a  poppy seed is  used  in  foods  , sprinkled  over sweets and also yields a bland oil, which is used  for culinary and lighting purposes.  It is because  of this  that  a seed has been excluded from the definition  of poppy  straw.   Poppy seed could be used in food  or  Indian sweets  or made into oil, which is largely used for culinary and  lighting purposes only after it is de-husked.  Thus the seed  would  be separated from the husk.  The definition  of husk  as given in Webster’s Dictionary, shows that the  husk is  any covering, especially when it is comparatively  worth less.  The husk whether it is on the seed or is removed from the  seed  remains  a  part of the plant  Papaver.   In  the commentaries  on  NDPS Act by Mr.  P.K.  Jain it is set  out that  crushed  capsules of poppy of commonly  called  "poppy husk"  or  "bhuki"  whether extracted or not and  that  they contain  a certain percentage of morphine and are often used as  addiction  producing  intoxicants.  Thus it  would  fall within  the  definition  of the term  "poppy  straw",  which includes  all  parts of the plant Papaver.  While  seed  has been  specifically excluded husk has not been excluded, from the definition of the term "poppy straw".  Therefore, in our view  the  producing, possessing,  transporting,  importing, exporting  inter-  State,  selling,   purchasing,  using  or omitting  to warehouse poppy husk would be an offence  under

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Section 15 inasmuch as poppy husk would fall within the term poppy straw as used in that Section.

   In  this  view  of the matter the  Appeals  would  stand dismissed.