Supreme Court of India
STATE OF HIMACHAL PRADESHversusNIRMAL KAUR @ NIMMO AND OTHERS
- Citation
- 2022 INSC 1121
- Decided
- 20 October 2022
- Disposal
- Appeal(s) allowed
Holding
A positive chemical test for morphine and meconic acid suffices to deem the material as derived from Papaver somniferum L and therefore as "poppy straw" under sub‑clause (a) of Clause (xvii) of Section 2, NDPS Act, without any further botanical or governmental notification.
Summary
The police seized about 20 kg of poppy husk from the accused Nirmal Kaur and others, and chemical analysis showed the presence of morphine and meconic acid. The trial court convicted them under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing commercial quantity of poppy straw, but the Himachal High Court set aside the conviction, holding that the two chemical tests were insufficient to prove the material was "poppy straw". The Supreme Court examined the statutory definition of "opium poppy" in Section 2(xvii) and concluded that a positive test for morphine and meconic acid is enough to establish that the seized material is derived from Papaver somniferum L, satisfying sub‑clause (a). It rejected the High Court's requirement for further botanical proof or a government notification under sub‑clause (b). Consequently, the appeal was allowed, the conviction reinstated, the sentence suspended, and the matter remanded to the High Court for fresh consideration.
Issues considered
- Whether the detection of morphine and meconic acid in the seized material is sufficient to establish that it is "poppy straw" under sub‑clause (a) of Clause (xvii) of Section 2 of the NDPS Act.
- Whether additional proof of the plant species (Papaver somniferum L) or a Central Government notification under sub‑clause (b) is required for conviction under Section 15 of the NDPS Act.
- How the definition of "opium poppy" should be interpreted in light of legislative intent, international conventions, and scientific evidence.
Legislation cited
- Dangerous Drugs Act, 1930
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 2(xvii)(a), s. 2(xvii)(b)
- Opium Act, 1857
- Opium Act, 1878
Subjects
NDPS Actpoppy strawopium poppymorphinemeconic acidstatutory interpretationmischief rulepurposive interpretationchemical analysisdrug trafficking
Judgment
[2022] 11 S.C.R. 369 369
STATE OF HIMACHAL PRADESH A
v.
NIRMAL KAUR @ NIMMO AND OTHERS
(Criminal Appeal No. 956 of 2012)
OCTOBER 20, 2022 B
[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
C
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 D
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
E
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 – F
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
G
‘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
H
369
370 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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
C 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
D
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
E 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 sub-
clause (a) in Clause (xvii) of s.2 of the 1985 Act, intended to continue
F ‘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
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 371
NIMMO AND OTHERS
brought under the prohibitory and regulatory measures – The remedy, A
which the Parliament provided was by way of incorporating sub-
clause (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
B
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 C
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 – D
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 E
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
F
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 G
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 H
372 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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.
C 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
D 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
E 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
F 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
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 373
NIMMO AND OTHERS
retaining the species of ‘papaver somniferum L’ in the definition A
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
B
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 C
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 D
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 E
‘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 F
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 G
‘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
H
374 SUPREME COURT REPORTS [2022] 11 S.C.R.
A ‘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
B ‘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’
C 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
D 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.
E 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
F 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)
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 375
NIMMO AND OTHERS
SCR 932; Harjit Singh v. State of Punjab (2011) 4 SCC A
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 B
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
C
[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
D
[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 E
[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 F
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.
G
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,
H
376 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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.
B 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
C 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
D 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
E
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
F 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
G 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’
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 377
NIMMO AND OTHERS [B. R. GAVAI, J.]
on the side of khad near Gurudwara Girgirga Sahib. Accordingly, eight A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
378 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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.
B 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:
C 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
D 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
E 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
F 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,
G
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
H twenty years and a fine which shall not be less than one lakh rupees but
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 379
NIMMO AND OTHERS [B. R. GAVAI, J.]
may extend to two lakh rupees, depending upon the quantity of ‘poppy A
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
B
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 C
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’, D
‘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 E
“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 F
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.
G
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 H
380 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Magma Leasing Limited 4 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
B 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
C 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
D 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
E 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:
F (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
G 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
H (1999) 4 SCC 253
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 381
NIMMO AND OTHERS [B. R. GAVAI, J.]
17. Shri Parameshwar submitted that there are three families of A
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
B
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. C
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 D
‘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 E
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 F
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.
G
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
H
382 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B 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’,
C wherein ‘opium’ was defined as under:
“3. Interpretation clause. - ………….
‘Opium’ means-
(i) the capsules of the poppy (papaver somniferum, L), whether
D 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
E (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;”
F 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
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 383
NIMMO AND OTHERS [B. R. GAVAI, J.]
(i) the capsules of the poppy (Papaver somniferum L.); A
(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 B
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:
C
“(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 D
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 E
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: F
“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 G
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:
H
384 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (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,
B
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.
C (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
D 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.
E (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
F 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
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 385
NIMMO AND OTHERS [B. R. GAVAI, J.]
noticed that, since the earlier three enactments came into existence, A
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
B
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 . – C
(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, D
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 E
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 F
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: G
(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;
H
386 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (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,
B 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;
C
(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
D 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
E 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’. As per
F 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.
27. Section 15 of the 1985 Act which provides for punishment for
G
contravention in relation to ‘poppy straw’ reads thus:
“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-
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 387
NIMMO AND OTHERS [B. R. GAVAI, J.]
State, sells, purchases, uses or omits to warehouse poppy straw A
or removes or does any act in respect of warehoused poppy straw
shall be punishable,-
(a) where the contravention involves small quantity, with
rigorous imprisonment for a term which may extend to
one year, or with fine which may extend to then thousand B
rupees or with both; or
(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with
rigorous imprisonment for a term which may extend to
ten years and with fine which may extend to one lakh C
rupees; or
(c) where the contravention involves commercial quantity,
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 D
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.
28. A perusal of Section 15 of the 1985 Act would reveal that, E
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 with F
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
G
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 H
388 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B (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
C purposes of the 1985 Act.
31. It will be relevant to note that, though the 1857 Act and the
1930 Act only defined ‘opium’, for the first time in the 1985 Act, separate
definitions have been provided for ‘opium’, ‘opium poppy’, ‘poppy straw’
and ‘poppy straw concentrate’.
D
32. We have already referred to the legislative history. The first
of the enactments to deal with is the 1878 Act and the second one is the
1930 Act. Both these enactments defined ‘opium’ to mean the capsules
of the ‘poppy’ (papaver somniferum L), and the spontaneously coagulated
juice of such capsules which has not been submitted to any manipulation
E other than those necessary for packing and transport. The said definitions
also included any mixture with or without neutral materials of any of the
above forms of ‘opium’. However, if any such preparations contained
less than 0.2% of ‘morphine’, it was excluded from the definition of
‘opium’. The 1949 Act also provided a similar definition.
F International Developments:
33. While we notice the developments on the legislative side in
India in enacting various legislations till the 1985 Act came into existence,
it will also be pertinent to note that there was a development in the last
century at the international level so as to make a combined effort in
G controlling and prohibiting the menace of drugs and psychotropic
substances.
34. The International Opium Convention was signed at The Hague
on 23rd January 1912 (hereinafter referred to as “the 1912 Convention”).
As per the agreement, in the 1912 Convention, ‘raw opium’ was defined
H as under:
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 389
NIMMO AND OTHERS [B. R. GAVAI, J.]
“Definition. – By “raw opium” is understood : A
The spontaneously coagulated juice obtained from the capsules
of the papaver somniferum which has only been submitted to
the necessary manipulations for packing and transport.”
35. In order to further the determination to continue the efforts to
combat drug addiction and illicit trafficking in narcotic substances and B
being aware about the fact that 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 C
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 D
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, E
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 prevent and combat this F
evil and understanding that such a universal action calls for an
international co-operation, the Single Convention on Narcotic Drugs, 1961
(hereinafter referred to as “the 1961 Convention”) was resolved. It was
further amended by the 1972 Protocol. It will be relevant to refer to the
definitions of ‘medicinal opium’, ‘opium’, ‘opium poppy’ and ‘poppy
G
straw’, as found in the 1961 Convention:
“o) “Medicinal opium” means opium which has undergone the
processes necessary to adapt it for medicinal use.
p) “Opium” means the coagulated juice of the opium poppy.
H
390 SUPREME COURT REPORTS [2022] 11 S.C.R.
A q) “Opium poppy” means the plant of the species Papaver
somniferum L.
r) “Poppy straw” means all parts (except the seeds) of the opium
poppy, after mowing.”
37. It could thus be seen that the 1912 Convention as well as the
B 1961 Convention, as amended by the 1972 Protocol, recognized even at
the international level that it was the plant ‘papaver somniferum L’ which
was used for manufacture of ‘opium’. In the 1953 Protocol, it was for
the first time noticed that there could be other species of ‘papaver’
which may be used for the production of ‘opium’. As such, though the
C definition in the 1953 Protocol included the plant of ‘papaver somniferum
L’, it also included any other species of ‘papaver’ which may be used
for the production of ‘opium’.
38. It will also be relevant to refer to the following extracts from
the “Commentary on the Single Convention on Narcotic Drugs, 1961”
D (for short, “the said Commentary”), which reads thus:
“1. It is sometimes difficult to decide, and therefore a difference
of opinion exists whether different forms of a plant constitute
different varieties of the same species or different species of the
same genus, e.g. “Papaver setigerum” is by some considered to
E be a variety of the species Papaver somniferum L. and by others
a separate species. It appears that some, albeit insignificant,
quantities of morphine can be obtained from Papaver setigerum.
2. The authors of the Single Convention appear to have assumed
that all plants from which opium can be obtained in significant
F quantities are only varieties of a single species, Papaver
somniferum L. They therefore defined “opium poppy” as the plant
of the species Papaver somniferum L. The 1953 Protocol, on
the other hand, defines “Poppy” to mean “the plant Papaver
somniferum L., and any other species of Papaver which may
be used for the production of opium”.
G
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
H juice of the plant would for the purposes of the Single Convention
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 391
NIMMO AND OTHERS [B. R. GAVAI, J.]
not be “opium” but could by the operation of article 3 of the Single A
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
B
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
Parties to the Single Convention required for the application of C
the simplified procedure foreseen in article 47.”
39. The said Commentary would show that, it was at times difficult
to consider as to whether different varieties of the same species or
different species of the same genus, i.e., ‘papaver setigerum’ could be
considered to be a variety of the species ‘papaver somniferum L’ or a D
separate species. It noted that the authors of the Single Convention
appeared to have assumed that all plants from which opium can be
obtained in significant quantities are only varieties of a single species,
i.e., Papaver somniferum L. As such, ‘opium poppy’ was defined as the
plant of the species ‘papaver somniferum L’. It also noted that though
the 1953 Protocol included the plant ‘papaver somniferum L’ within the E
definition of ‘poppy’, it also included any other species of ‘papaver’
which may be used for the production of ‘opium’. The authors of the
said Commentary therefore opined that, if a plant which is considered
not to be a variety of the species ‘papaver somniferum L’ but of another
species of the genus ‘papaver’, be found to yield opium, the plant itself F
and its product would not be covered by the controlling provisions of the
Single Convention, but only by those of the Protocol. The coagulated
juice of the plant would, for the purpose 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’. The authors of the G
said Commentary, therefore, recommended that, for handling such a
situation, the definition of ‘opium poppy’ be amended so as to cover the
additional species found to yield ‘opium’.
40. We find that all these international developments need to be
taken into consideration while interpreting the 1985 Act inasmuch as the H
392 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Statement of Objects and Reasons itself mentioned that there had been
developments at the international level with regard to control of any
drugs and psychotropic substances and the 1985 Act is enacted to give
effect to the commitments in the international conventions.
Scientific Studies:
B 41. A lot of research has undertaken with regard to the exact
definition of ‘opium poppy’. In the 1966 Dictionary, ‘papaver somniferum
L’ is defined as ‘opium poppy’. 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
C 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
D 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
E ‘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
F
Fresh opium is a brownish, somewhat plastic solid, becoming tough
and occasionally brittle on keeping and has a characteristic fruity
odour. Opium is valued for the alkaloids it contains, the total alkaloid
content varying from 5 to 25% (generally 20%). A large number
of alkaloids have been isolated from opium, of which at present
G 25 are known (Table 3). Morphine, codeine thebaine, narcotine,
narceine and papaverine are the chief opium alkaloids, and of
these morphine is the most abundant and by far the most important.
Morphine exists in combination with meconic and sulphuric acids
in the form of salts readily soluble in water. Other alkaloids occur
in opium partly in the free state and partly as salts (Thrope, IX,
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 393
NIMMO AND OTHERS [B. R. GAVAI, J.]
99; Annett et al., Mem Dep. Agric India, Chem, 1921-23, 6-1; A
Merck Index, 756, Chopra et al., 169; Henry, 178; U.S.D., 1955,
927)
The valuation of opium depends upon its morphine-content which
varies markedly in commercial samples.”
43. A perusal of the aforesaid would reveal that ‘papaver B
somniferum L’ contains five major alkaloids, viz., ‘Morphine’, ‘Narcotine’,
‘Papaverine’, ‘Thebaine’ and ‘Codeine’. It would also reveal that
‘morphine’ exists in combination with ‘meconic’ and ‘sulphuric’ acids.
The valuation of ‘opium’ depends upon its ‘morphine-content’ which
varies markedly in commercial samples. C
44. It will also be relevant to refer to the 1998 Manual, which
recommended methods for the testing of ‘opium’, ‘morphine’ and ‘heroin’.
The 1998 Manual deals with production of illicit ‘opium’. The relevant
extracts from the 1998 Manual reads thus:
“The immediate precursor of heroin is morphine, and morphine is D
obtained from opium. Opium is the dried milky juice (latex) obtained
from the unripe seed pods of Papaver somniferum L., more
commonly referred to as the opium or oil poppy. Morphine has
also been reported to be present in Papaver setigerum, and as a
minor alkaloid in Papaver decaisnei and Papaver rhoeas. E
However, there is no known instance of these poppies being used
for opium production, and more recent work has cast considerable
doubt as to the presence of morphine in Papaver rhoeas. A major
review by Kapoor on the botany and chemistry of the opium poppy
is recommended additional reading.”
F
45. It is thus seen that the 1998 Manual also emphasizes that the
immediate precursor of ‘heroin’ is ‘morphine’, and ‘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 G
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’:
H
394 SUPREME COURT REPORTS [2022] 11 S.C.R.
A MAJOR ALKALOIDS FOUND IN RAW OPIUM
alkaloids min% avg% max%
MORPHINE 3.1 11.4 19.2
CODEINE 0.7 3.5 6.6
B
THEBAINE 0.2 3.1 10.6
PAPAVERINE <0.1 3.2 9.0
NOSCAPINE 1.4 8.1 15.8
C 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
D that, apart from the six major alkaloids found in ‘opium’, ‘meconic acid’
is easily detectible in ‘papaver somniferum L’. The study states that
‘meconic acid’ is invariably found in ‘opium’ and its presence has long
been used to indicate ‘opium’. The study shows that some species of
‘papaver’ which produces no morphine but other morphinanes may also
contain this acid. However, the study shows that, insofar as ‘papaver
E
somniferum L’ is concerned, ‘morphine’ and ‘meconic acid’ are found in
it.
48. A publication published by the International Narcotics Control
Board namely “Narcotic Drugs Stupefiants Estupefacientes – Estimated
World Requirements for 2022”, also states thus:
F
“3. Opium and poppy straw are the raw materials obtained from
the opium poppy plant (Papaver somniferum), from which alkaloids
such as morphine, thebaine, codeine and oripavine are extracted.
Concentrate of poppy straw is a product obtained in the process
of extracting alkaloids from poppy straw. It is controlled under
G the 1961 Convention. Detailed information on the supply of opiate
raw material and demand for opiates for medical and scientific
purposes is provided in part three of the present publication.”
49. It will further be relevant to note that Section 3 of the 2021
Manual deals with ‘opium’, ‘opium alkaloids’ and ‘poppy straw’. It will
H be relevant to refer to Section 3.7 of the 2021 Manual, which reads thus:
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 395
NIMMO AND OTHERS [B. R. GAVAI, J.]
“3.7 Methods: A
3.7.1 Colour Tests:
Positive results of these tests are only presumptive indication for
the presence of opium alkaloids. It is mandatory for analyst to
confirm such results by use of any alternate technique.
B
a) Marquis test [1]: Take a small amount of suspected sample
in a test tube and add about 10 drops of water, crush the sample
with a glass rod. Place a few drops of water solution through
filter paper/supernatant liquid on a spotting plate and add few
drops of Marquis reagent. The development of purple violet color
indicates the presence of opium/crude morphine. C
Preparation of Marquis Reagent: 8-10 drops of 40%
formaldehyde solution is added to 10 ml of Con. Sulphuric acid.
b) Ferric Salt Test [1]: Take small aount of suspected material
on a spot plate and add about 2 drops of water, triturate the sample D
until the water becomes brown colour. Take a drop of brown
liquid to another part of the spot 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. E
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 F
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. G
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
H
396 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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 mixture to
another part of the plate, add one drop of 2 N hydrochloric acid
and heat gently. Appearance of red colour indicates the presence
of porphyroxine.”
B
50. It could thus be seen that, though the positive results in the
colour tests are only an indication for the presence of ‘opium alkaloids’,
it is mandatory to confirm such results by the use of an alternate technique.
It would further reveal that the Marquis Test indicates the presence of
‘opium/crude morphine’. The Ferric Salt Test would reveal the presence
C of ‘meconic acid’. It could thus be seen that, though colour test is positive,
the same is required to be confirmed to establish the presence of ‘opium/
crude morphine’ and ‘meconic acid’.
51. In this background, we will have to consider the present issue.
D 52. We find that two principles of interpretation of statutes would
govern the present case. The first one being the Mischief Rule of
interpretation.
Heydon’s/Mischief Rule:
53. As early as in the year 1955, the Constitution Bench of this
E Court in the case of The Bengal Immunity Company Limited v. The
State of Bihar and Others10, has observed thus:
“23. It is a sound rule of construction of a statute firmly established
in England as far back as 1584 when Heydon’s case [3 Co. Rep
7a : 76 ER 637] was decided that—
F
“… for the sure and true interpretation of all statutes in general
(be they penal or beneficial, restrictive or enlarging of the
common law) four things are to be discerned and considered:
1st. What was the common law before the making of the
Act.
G
2nd. What was the mischief and defect for which the
common law did not provide.
3rd. What remedy the Parliament hath resolved and
appointed to cure the disease of the Commonwealth., and
H 10
[1955] 2 SCR 603
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 397
NIMMO AND OTHERS [B. R. GAVAI, J.]
4th. The true reason of the remedy; and then the office of A
all the Judges is always to make such construction as shall
suppress the mischief, and advance the remedy, and to
suppress subtle inventions and evasions for continuance of
the mischief, and pro privato commodo, and to add force
and life to the cure and remedy, according to the true intent
B
of the makers of the Act, pro bona publico.”
In In re Mayfair Property Company [LR (1898) 2 Ch 28 at p.
35] Lindley, M.R. in 1898 found the rule “as necessary now as it
was when Lord Coke reported Heydon case”. In Eastman
Photographic Material Company v. Comptroller General of
Patents, Designs and Trade Marks [LR (1898) AC 571 at 576] C
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 D
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 E
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 F
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?
G
(ii) What was the mischief and defect for which the earlier
enactments did not provide?
(iii) What remedy had the Parliament resolved to cure the
mischief and defect?
(iv) The true reason for the remedy. H
398 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 55. As already discussed hereinabove, the International
Conventions consistently recognized that the ‘papaver somniferum L’
was used for the production of ‘opium’. The 1878 Act as well as the
1930 Act also clearly recognized that ‘opium’ was derived from ‘papaver
somniferum L’. The voluminous scientific study has also recognized that
the ‘papaver somniferum L’ contains ‘morphine’ and ‘meconic acid’.
B
56. The 1953 Protocol first noticed that there are other species of
‘papaver’ which may be used for the production of ‘opium’. The said
Commentary again noticed this position. It also noticed the difficulty in
deciding whether different forms of a plant constitute different varieties
of the same species or different species of the same genus, for example,
C ‘papaver setigerum’. It noticed that some considered it to be a variety of
the species ‘papaver somniferum L’ and others considered it a separate
species. It also noticed that insignificant quantities of ‘morphine’ can be
obtained from ‘papaver setigerum’. The said Commentary noticed that
the authors of the Single Convention appeared to have assumed that all
D plants from which ‘opium’ can be obtained in significant quantities are
only varieties of a single species ‘papaver somniferum L’. It noted that
they, therefore, defined ‘opium poppy’ as the plant of the species ‘papaver
somniferum L’. It also noted that the 1953 Protocol, on the other hand,
defined ‘poppy’ to mean the plant ‘papaver somniferum L’ and any other
species of ‘papaver’ which may be used for the production of ‘opium’.
E To overcome this difficulty, the said Commentary recommended
amendment in the definition of ‘opium poppy’ so as to cover the additional
species found to yield ‘opium’.
57. It is to be noted that, the Statement of Objects and Reasons of
the 1985 Act would reveal that the 1985 Act was enacted since it was
F found that the earlier three enactments were not found sufficient to
meet the challenges thereunder. It is also noticed that, after the enactment
of the earlier three Acts, a vast body of international law in the field of
narcotics control has evolved through various international treaties and
protocols and as such, it was found necessary to bring out a consolidated
G 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
H ‘papaver’ from which ‘opium’ or any other ‘phenanthrene alkaloid’ could
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 399
NIMMO AND OTHERS [B. R. GAVAI, J.]
be extracted. In this background, Clause (xvii) of Section 2 of the 1985 A
Act was divided into two parts. In view of sub-1clause (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
B
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 ‘meconic
acid’ and as such, it may be used for the production of ‘opium’, by virtue C
of sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act, defined it
to mean ‘opium’ for the purpose of the 1985 Act. Whereas, since it was
noticed that some other species of ‘papaver somniferum L’ could also
be used for the production of ‘opium’ which contains ‘opium’ or any
‘phenanthrene alkaloid’, it vested a discretion with the Central D
Government to issue a notification in the Official Gazette to declare
such a plant to be ‘opium poppy’ for the purpose of the 1985 Act.
60. Since it is recognized by the earlier three enactments as well
as the International Conventions and scientific studies that ‘papaver
somniferum L’ contains ‘morphine’ and ‘meconic acid’, in our view, after E
the two tests positively indicate the sample of ‘poppy straw’ to contain
‘morphine’ and ‘meconic acid’, a further requirement to establish that
the contraband species belong to the species of only ‘papaver somniferum
L’ would be contrary to the legislative intent.
61. It is further to be noted that the United Nations Convention F
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
1988 (for short, “1988 Convention”), has again defined ‘opium’, which
reads thus:
“Opium poppy” means the plant of the species “papaver
sominferum L”; G
62. It is to be noticed that, though the 1953 Protocol for the first
time included any other species of ‘papaver’, which was being used for
the production of ‘opium’, the subsequent Conventions of 1961 and 1988
restricted the definition of ‘opium poppy’ to be a plant of the species of
‘papaver somniferum L’. It is thus clear that, the legislature by
H
400 SUPREME COURT REPORTS [2022] 11 S.C.R.
A incorporating sub-clause (a) in Clause (xvii) of Section 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
B poppy’ for the purpose of the 1985 Act.
63. In our view, the defect that was 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
C 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
D 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
E 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.
F Purposive Interpretation:
66. That leaves us to deal with the next principle of interpretation
which would govern the case. By now, it is a settled principle of law that
an enactment has to be incorporated in such a manner which advances
the purpose of the Act rather than interpretating in such a manner which
G defeats the purpose of the Act.
67. In the case of State of Kerala v. Mathai Verghese and
Others11, the High Court of Kerala has held that, for appreciating the
provisions of Section 489-A of the Indian Penal Code, 1860 for possession
of contraband notes, it was necessary to establish that the said currency
11
H (1986) 4 SCC 746
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 401
NIMMO AND OTHERS [B. R. GAVAI, J.]
notes would mean only Indian currency notes. This Court, reversing the A
judgment of the Kerala High Court, held thus:
“6. …….It is not for the court to reframe the legislation for the
very good reason that the powers to “legislate” have not been
conferred on the court. When the expression “currency note” is
interpreted to mean “Indian currency note”, the width of the
B
expression is being narrowed down or cut down. Apart from the
fact that the court does not possess any such power, what is the
purpose to be achieved by doing so? A court can make a
purposeful 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. When the C
court (apparently in the course of an exercise in interpretation)
shrinks the content of the expression “currency note”, to make it
referable to only “Indian currency note”, it is defeating the intention
of the legislature partly inasmuch as the court makes it lawful to
counterfeit notes other than Indian currency notes. The manifest
purpose of the provision is that the citizens should be protected D
from being deceived or cheated. The citizens deal with and
transact business with each other through the medium of currency
[ Currency n. 1 a metal or paper medium of exchange that is in
current use. (Collins English Dictionary)] (which expression
includes coins as also paper currency that is to say currency notes).
It is inconceivable why the legislature should be anxious to E
protect citizens from being deceived or cheated only in respect
of Indian currency notes and not in respect of currency notes
issued by other sovereign powers. The purpose of the
legislation appears to be to ensure that a person accepting a
currency note is given a genuine currency which can be
F
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 G
in respect of currency notes issued by any foreign State or
sovereign power?
…….”
[emphasis supplied]
H
402 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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. Shipping Corporation
of India Limited and Another12, the provisions of Section 630 of the
C Companies Act, 1956 fell for consideration before this Court. It was
argued before the court that, the term “officer” or “employee” used in
the said Section would apply to the existing officers or employees and
not past officers and employees. Negating the said contention, this Court
observed thus:
D “7. The beneficent provision contained in Section 630 no doubt
penal, has been purposely enacted by the legislature with the object
of providing a summary procedure for retrieving the property of
the company (a) where an officer or employee of a company
wrongfully obtains possession of property of the company, or (b)
E where having been placed in possession of any such property
during the course of his employment, wrongfully withholds
possession of it after the termination of his employment. It is the
duty of the court to place a broad and liberal construction on the
provision in furtherance of the object and purpose of the legislation
which would suppress the mischief and advance the remedy.
F
8. Section 630 of the Act which makes the wrongful withholding
of any property of a company by an officer or employee of the
company a penal offence, is typical of the economy of language
which is characteristic of the draughtsman of the Act. The section
is in two parts. Sub-section (1) by clauses (a) and (b) creates two
G distinct and separate offences. First at these is the one
contemplated by clause (a), namely, where an officer or employee
of a company wrongfully obtains possession of any property of
the company during the course of his employment, to which he is
not entitled. Normally, it is only the present officers and employees
12
H (1987) 4 SCC 361
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 403
NIMMO AND OTHERS [B. R. GAVAI, J.]
who can secure possession of any property of a company. It is A
also possible for such an officer or employee after termination of
his employment to wrongfully take away possession of any such
property. This is the function of clause (a) and although it primarily
refers to the existing officers and employees, it may also take in
past officers and employees. In contrast, clause (b) contemplates
B
a case where an officer or employee of a company having any
property of a company in his possession wrongfully withholds it
or knowingly applies it to purposes other than those expressed or
directed in the articles and authorised by the Act. It may well be
that an officer or employee may have lawfully obtained possession
of any such property during the course of his employment but C
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
D
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 E
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 F
employee, though having lawfully obtained the possession of such property
during the course of his employment, wrongfully withholds possession
of it after the termination of the employment, would squarely be covered
by the said Section. The Court also held that it is the duty of the court to
place a broad and liberal construction on the provision in furtherance of
G
the object and purpose of the legislation. The interpretation which
suppresses the mischief and advances the remedy has to be preferred.
71. Though this Court in the case of Sanjay Dutt v. State through
C.B.I., Bombay (II)13, has held that in case of a penal statute, when
13
(1994) 5 SCC 410 H
404 SUPREME COURT REPORTS [2022] 11 S.C.R.
A two reasonable and possible constructions are possible, one which leans
in favour of the accused could be preferred, it will still be relevant to
refer to the following observations of the Constitution Bench in the said
case:
“13. The TADA Act was enacted to make special provisions for
B the prevention of, and for coping with, terrorist and disruptive
activities and for matters connected therewith or incidental thereto
in the background of escalation of the terrorist and disruptive
activities in the country. There is also material available for a
reasonable belief that such activities are encouraged even by
hostile foreign agencies which are assisting influx of lethal and
C hazardous weapons and substances into the country to promote
escalation of these activities. The felt need of the times is, therefore,
proper balancing of the interest of the nation vis-a-vis the rights
of a person accused of an offence under this Act. The rights of a
person found in unauthorised possession of such a weapon or
D substance in this context, to prove his innocence of involvement
in a terrorist or disruptive activity, is to be determined.
14. The construction made of any provision of this Act must,
therefore, be to promote the object of its enactment to enable
the machinery to deal effectively with persons involved in,
E and associated with, terrorist and disruptive activities while
ensuring that any person not in that category should not be subjected
to the rigours of the stringent provisions of the TADA Act. It
must, therefore, be borne in mind that any person who is being
dealt with and prosecuted in accordance with the provisions
of the TADA Act must ordinarily have the opportunity to show
F that he does not belong to the category of persons governed
by the TADA Act. Such a course 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,
G 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.
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 405
NIMMO AND OTHERS [B. R. GAVAI, J.]
15. It is the duty of courts to accept a construction which A
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
B
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 cases. It is hoped that this
action will be taken in all the States throughout the country. Persons
aware of instances of abuse, including the National Human Rights C
Commission, can assist by reporting such instances with particulars
to that machinery for prompt and effective cure. However, that is
no reason, in law, to doubt its constitutionality or to alter the proper
construction when there is a felt need by Parliament for enacting
such a law to cope with, and prevent terrorist and disruptive
D
activities threatening the unity and integrity of the country.”
[emphasis supplied]
72. It could thus be seen that the Constitution Bench held that it is
the duty of the courts to accept a construction which promotes the object
of the legislation. It was held that the construction made of any provision E
of the Act must be to promote the object of the enactment to enable the
machinery to deal effectively with the persons involved in the crime.
73. In the case of State of M.P. and Others v. Ram Singh (supra),
this Court held thus:
“10. The Act was intended to make effective provisions for the F
prevention of bribery and corruption rampant amongst the public
servants. It is a social legislation intended to curb illegal activities
of the public servants and is designed to be liberally construed so
as to advance its object. Dealing with the object underlying the
Act this Court in R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183 G
: 1984 SCC (Cri) 172] held: (SCC p. 200, para18)
“18. The 1947 Act was enacted, as its long title shows, to
make more effective provision for the prevention of bribery
and corruption. Indisputably, therefore, the provisions of the
Act must receive such construction at the hands of the court
H
406 SUPREME COURT REPORTS [2022] 11 S.C.R.
A as would advance the object and purpose underlying the
Act and at any rate not defeat it. If the words of the statute
are clear and unambiguous, it is the plainest duty of the
court to give effect to the natural meaning of the words
used in the provision. The question of construction arises
only in the event of an ambiguity or the plain meaning of
B the words used in the statute would be self-defeating. The
court is entitled to ascertain the intention of the legislature
to remove the ambiguity by construing the provision of the
statute as a whole keeping in view what was the mischief
when the statute was enacted and to remove which the
C legislature enacted 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
D 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.
E 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
F 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. In the case of Balram Kumawat v. Union of India and
G Others14, this Court had an occasion to consider the meaning of the
word ‘ivory’ used in the Wild Life (Protection) Act, 1972. The court
observed thus:
“23. Furthermore, even in relation to a penal statute any narrow
and pedantic, literal and lexical construction may not always be
14
H (2003) 7 SCC 628
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 407
NIMMO AND OTHERS [B. R. GAVAI, J.]
given effect to. The law would have to be interpreted having regard A
to the subject-matter of the offence and the object of the law it
seeks to achieve. The purpose of the law is not to allow the
offender to sneak out of the meshes of law. Criminal jurisprudence
does not say so.
24. …….. B
25. A statute must be construed as a workable instrument. Ut res
magis valeat quam pereat is a well-known principle of law. In
Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3
SCC 709 : AIR 1990 SC 123] this Court stated the law thus :
(SCC p. 754, paras 118-120) C
“118. The courts strongly lean against any construction which
tends to reduce a statute to futility. The provision of a statute
must be so construed as to make it effective and operative, on
the principle ‘ut res magis valeat quam pereat’. It is, no doubt,
true that if a statute is absolutely vague and its language wholly D
intractable and absolutely meaningless, the statute could be
declared void for vagueness. This is not in judicial review by
testing the law for arbitrariness or unreasonableness under
Article 14; but what a court of construction, dealing with the
language of a statute, does in order to ascertain from, and
accord to, the statute the meaning and purpose which the E
legislature intended for it. In Manchester Ship Canal Co. v.
Manchester Racecourse Co. [(1900) 2 Ch 352 : 69 LJCh
850: 83 LT 274 (CA)] Farwell, J. said : (pp. 360-61)
‘Unless the words were so absolutely senseless that I could
do nothing at all with them, I should be bound to find some F
meaning and not to declare them void for uncertainty.’
119. In Fawcett Properties Ltd. v. Buckingham County
Council [(1960) 3 All ER 503 : (1960) 3 WLR 831 (HL)] Lord
Denning approving the dictum of Farwell, J. said : (All ER p.
516) G
‘But when a statute has some meaning, even though it is
obscure, or several meanings, even though there is little to
choose between them, the courts have to say what meaning
the statute is to bear, rather than reject it as a nullity.’
H
408 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B (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
C 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
D 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 to a penal statute, any narrow and pedantic,
literal and lexical construction may not always be given direct effect and
E the interpretation has to be preferred with regard to the subject matter
of the offence and the object of law it seeks to achieve. The interpretation
that defeats the plain intention of the legislature, even though there may
be some inexactitude in the language used, will have to be rejected. It
has been held that the golden construction for the purpose of bringing
out an effective result will have to be accepted.
F
77. In the case of Standard Chartered Bank and Others v.
Directorate of Enforcement and Others15, it was contended before
the Constitution Bench of this Court that no criminal proceedings can be
initiated against the Company under Section 56(1) of the Foreign
Exchange Regulation Act (FERA), 1973 since under the FERA Act, the
G minimum punishment prescribed is imprisonment for a term which shall
not be less than six months with fine. The argument on behalf of the
appellant therein that the penal provision of the statute is required to be
construed strictly, was considered in the majority view as under:
15
(2005) 4 SCC 530
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 409
NIMMO AND OTHERS [B. R. GAVAI, J.]
“23. The counsel for the appellant contended that the penal A
provision in the statute is to be strictly construed. Reference was
made to Tolaram Relumal v. State of Bombay [(1955) 1 SCR
158 : 1954 Cri LJ 1333] , SCR at p. 164 and Girdhari Lal Gupta
v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279] . It is
true that all penal statutes are to be strictly construed in the sense
B
that the court must see that the thing charged as an offence is
within the plain meaning of the words used and must not strain
the words on any notion that there has been a slip that the thing is
so clearly within the mischief that it must have been intended to
be included and would have been included if thought of. All penal
provisions like all other statutes are to be fairly construed C
according to the legislative intent as expressed in the
enactment. Here, the legislative intent to prosecute corporate
bodies for the offence committed by them is clear and explicit
and the statute never intended to exonerate them from being
prosecuted. It is sheer violence to common sense that the
D
legislature intended to punish the corporate bodies for minor and
silly offences and extended immunity of prosecution to major and
grave economic crimes.
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 E
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 F
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 G
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: H
410 SUPREME COURT REPORTS [2022] 11 S.C.R.
A “The more correct version of the doctrine appears to be that
statutes of this class are to be fairly construed and faithfully
applied according to the intent of the legislature, without
unwarrantable severity on the one hand or unjustifiable lenity
on the other, in cases of doubt the courts inclining to mercy.”
B 25. The question, therefore, is what is the intention of the
legislature. It is an undisputed fact that for all the statutory
offences, company also could be prosecuted as the “person”
defined in these Acts includes “company, or corporation or other
incorporated body”.”
[emphasis supplied]
C
78. It is thus clear that the Constitution Bench has reiterated that
penal provisions like all other provisions of other statutes are to be
construed according to the legislative intent as expressed in the enactment.
79. Recently, a three-Judges Bench of this Court in the case of
Hira Singh and Another v. Union of India and Another16, while
D answering a reference with regard to the correctness of the view taken
by this Court in the case of E. Micheal Raj v. Narcotics Control
Bureau17, to the effect that, when any narcotic drug or psychotropic
substance is found mixed with one or more neutral substance for the
purpose of imposition of punishment, it is the content of narcotic drug or
E psychotropic substance which would be taken into consideration, the
Court held thus:
“10.1. In Directorate of Enforcement v. Deepak Mahajan
[Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC
440 : 1994 SCC (Cri) 785] , it is observed by this Court that every
law is designed to further ends of justice but not to frustrate on
F
the mere technicalities. It is further observed that though the
intention of the Court is only to expound the law and not to legislate,
nonetheless the legislature cannot be asked to sit to resolve the
difficulties in the implementation of its intention and the spirit of
the law. It is the duty of the Court to mould or creatively interpret
G the legislation by liberally interpreting the statute. In the said decision
this Court has also quoted (at SCC pp. 453-54, para 25) the
following passage in Maxwell on Interpretation of Statutes, 10th
Edn. p. 229:
16
(2020) 20 SCC 272
17
H (2008) 5 SCC 161
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 411
NIMMO AND OTHERS [B. R. GAVAI, J.]
“25. … ‘Where the language of a statute, in its ordinary meaning A
and grammatical construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably
not intended, a construction may be put upon it which modifies
the meaning of the words, and even the structure of the
B
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 C
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 D
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 scope E
and object may not become futile.”
[emphasis supplied]
80. It could thus be seen that it is more than a settled principle of
law that, while interpreting the provisions of the statute, the court has to F
prefer an interpretation which advances the purpose of the statute.
Conclusion:
81. As already discussed hereinabove, 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 G
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
H
412 SUPREME COURT REPORTS [2022] 11 S.C.R.
A conventions which entailed several obligations which were not 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,
B
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
C interpretation which advances the purpose of the Act has to be preferred
rather than adopting a pedantic and a mechanical approach.
82. As already discussed hereinabove, 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
D 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’
E as a plant of ‘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
F 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
G 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
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 413
NIMMO AND OTHERS [B. R. GAVAI, J.]
that there was some material to show that some other species of ‘papaver’ A
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
B
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 C
prohibitory and regulatory provisions of the 1985 Act.
84. 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’, D
would escape the stringent provisions of the 1985 Act. The said could
never have been the intention of the legislature. In our view, 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.
85. In light of the view that we have taken, we do not find it E
necessary to refer to other judgments of the Gujarat High Court as well
as the Himachal Pradesh High Court.
86. Insofar as the reliance placed by the High Court of Himachal
Pradesh on the judgment of this Court in the case of Amarsingh
Ramjibhai Barot (supra) is concerned, the only question for F
consideration before this Court was, as to whether the High Court was
justified in taking the total quantity of the offending substances recovered
from the two accused jointly and holding that the said quantity was more
than the commercial quantity, warranting punishment under Section 21(c)
of the 1985 Act. In the said case, the opinion given by the FSL was that
it was ‘opium’ as described in the 1985 Act. The court from the evidence G
found that the substance recovered from the appellant therein had 2.8%
anhydride morphine. The court therefore held that it would amount to
‘opium derivative’ within the meaning of Section 2(xvi)(e) of the 1985
Act. It was therefore held that, what was recovered from the appellant
therein was ‘manufactured drug’ within the meaning of Section 2(xi) of H
414 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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’,
B
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
C 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
D 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.
89. As already discussed hereinabove, once it is established that
E 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.
90. We further find that the High Court was also not justified in
F 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. We fail to understand as to how a Chemical
G Examiner could be asked whether the seized material was a part of any
other species of ‘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.
H
STATE OF HIMACHAL PRADESH v. NIRMAL KAUR @ 415
NIMMO AND OTHERS [B. R. GAVAI, J.]
91. In the result, we hold that, once a Chemical Examiner A
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,
B
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.
92. Before we part with the judgment, we must place on record
that Shri Parameshwar, learned amicus curiae and Shri Mukerji, learned C
AAG have taken great pains in researching various scientific study as
well as the relevant material at the national and international level. We
place on record our deep appreciation for the valuable assistance rendered
by both Shri Parameshwar and Shri Mukerji. We must also place on
record that Shri Parameshwar has ably placed before us both the sides D
of the present issue, one from the perspective of the accused and the
other from the perspective of the prosecution.
93. Insofar as the present appeal is concerned, since the appeal is
allowed by the High Court only on the aforesaid ground without
considering any other material, we remand the matter to the High Court E
for consideration afresh in accordance with what has been held by us
hereinabove.
94. Mr. Neeraj Jain, learned senior counsel appearing for the
respondent(s) submits that since the judgment and order of the High
Court has been set aside, the respondent(s)- accused would be required F
to surrender.
95. We suspend the sentence till the matter is decided on merits
by the High Court.
96. The appeal is allowed in the above terms.
G
97. Pending application(s), if any, shall stand disposed of in the
above terms. No order as to costs.
Bibhuti Bhushan Bose Appeal allowed.
(Assisted by : Shevali Monga, LCRA)
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "NDPS Act"Sign in to search