1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 956 OF 2012

STATE OF HIMACHAL PRADESH ...APPELLANT(S)

VERSUS

NIRMAL KAUR @ NIMMO AND OTHERS ...RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. A coordinate Bench of this Court, vide order dated

14

th August 2018, has framed the following question s 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 was the sample of

poppy straw and whether it is necessary

for the prosecution to bring in materials

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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 Substances Act, 1985 (hereinafter referred to as

the “1985 Act”), this Court, vide its order dated 14

th 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 amicus curiae.

Factual Background:

3. On 25

th July 2003, when Sarbjeet Singh (PW -12)

along with some other police officials were on patrolling duty

at Haroli in Una District, he was informed by Constable

Upnesh Kumar (PW -1) that the respondent-accused was

indulging in the illicit trading of ‘poppy straw’ and that she

had kept huge quantity of ‘poppy straw’ in the room where

fodder for the cattle had been stacked.

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4. After complying with the formalities as prescribed

under the 1985 Act, a raiding party was formed and the

premises of the respondent was searched. During the search,

a bag containing 20 Kgs. of ‘poppy husk’ was found in the

room meant for stacking fodder. Two samples each weighing

250 grams were separated and sealed. The respondent was

arrested. While in police custody, the respondent made a

disclosure statement that she had concealed nine more

gunny bags of ‘poppy husk’ on the side of khad near

Gurudwara Girgirga Sahib. Accordingly, eight gunny bags

each containing 40 Kgs. of ‘poppy husk’ and one bag

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 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

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respondent guilty and convicted and sentenced her to

undergo rigorous 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 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 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 Government had notified to be ‘opium

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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 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 2

nd November 2007, allowed the

appeal and set aside the judgment and order of conviction

and sentence dated 29

th November 2004 passed by the trial

court. Being aggrieved thereby, the State preferred an appeal

before this Court.

7. During the pendency of the appeal, this Court found

that important questions of law arose for consideration on

the aforesaid issue. Vide a subsequent order of this Court

dated 6

th February 2019, the Union of India through its

Secretary, Department of Revenue, Ministry of Finance, New

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Delhi was directed to be impleaded as the second

respondent.

Submissions:

8. We have accordingly heard Shri Abhinav Mukerji,

learned Additional Advocate General (for short, “AAG”) for the

State of Himachal Pradesh and Shri Neeraj Jain, learned

Senior Counsel appearing on behalf of the respondents.

9. We have also heard Shri K. Parameshwar, learned

amicus curiae and Shri K.M. Nataraj, learned Additional

Solicitor General (for short, “ASG”) for the Union of India.

10. Shri Mukerji submitted that the view taken by the

High Court is totally incorrect. The learned AAG submitted

that under Article 47 of the Constitution of India, the State is

duty bound to bring about prohibition of the consumption

except for 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.

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11. The learned AAG submitted that different definitions

have 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, 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 twenty years and a fine which shall not be

less than one lakh rupees but may extend to two lakh

rupees, depending upon the quantity of ‘poppy 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

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relied on the judgment of this Court in the c ase of

Amarsingh Ramjibhai Barot v. State of Gujarat

1. He

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

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’, ‘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

1

(2005) 7 SCC 550

9

which are recommended by the United Nations. The learned

AAG further submitted that the Directorate of Forensic

Science Services, Ministry of Home Affairs, Government of

India, New Delhi has issued “Working Procedure Ma nual :

Narcotics” in the year 2021 (hereinafter referred to as the

“2021 Manual”). He submitted that the said Manual

contains the tests which are required to be conducted for

finding out the presence of ‘opium/crude morphine’ and

‘meconic acid’. The learned AAG submitted that ‘papaver

somniferum L’ is the only species which contains ‘morphine’

and ‘meconic acid’. It is therefore submitted that the finding

of the High Court that these two tests are not sufficient to

reach to a conclusion that the species belong to ‘papaver

somniferum L’ and as such, is not punishable under Section

15 of the 1985 Act, does not lay down a correct proposition of

law.

13. Shri Mukerji relies on the judgments of this Court in

the cases of State of M.P. and Others v. Ram Singh

2,

Swantraj and Others v. State of Maharashtra

3 and NEPC

2

(2000) 5 SCC 88

3

(1975) 3 SCC 322

10

Micon Limited and Others v. 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 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 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 that, as such,

4

(1999) 4 SCC 253

11

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 oth er counsel have adopted the

submissions advanced by Shri Jain.

15. Shri Nataraj, learned ASG also submitted that since

the 1985 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:

(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

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belongs to the species 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’?

17. Shri Parameshwar submitted that there are three

families of narcotic drugs which are dealt with by the statute,

namely, ‘opium’, ‘cannabis (hemp)’ and ‘coca leaf’. He

submitted that it is only the plant of ‘papaver somniferum L’

which contains ‘opium’. He fairly submitted that the earlier

enactments only recognized ‘papaver somniferum L’ as a

source for ‘opium’. It is only the 1985 Act which has also

included sub-clause (b) in Clause (xvii) of Section 2 which

provides for any other species of ‘papaver’ from which ‘opium’

or any ‘phenanthrene alkaloid’ can be extracted. However,

such a species, to come under the provisions of the 1985 Act,

is required to be notified by the Central Government. He

fairly submitted that no such notification recognizing any

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other species of ‘papaver’ has been notified by the Central

Government.

18. Shri Parameshwar also agrees with the submissions

made by Shri Mukerji that India is also obligated to honour

its obligations as per the decisions 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 ‘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 Orissa

5, 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 case of Harjit Singh v. State of

Punjab

6, 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

5

1968 (XXXIV) Cuttack Law Times -I

6

(2011) 4 SCC 441

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Gujarat High Court in the case of Hathi @ Mangalsinh

Ramdayalji v. State of Gujarat

7 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 Raj

9 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.

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 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,

7

1992 SCC OnLine Guj 311

8

2007 SCC OnLinee HP 120

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2013 SCC OnLine HP 371

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1878 (for short, “1878 Act”) was enacted to amend the laws

relating to ‘opium’, wherein ‘opium’ was defined as under:

“3. Interpretation clause. - ………….

‘Opium’ means-

(i) the capsules of the poppy (papave r

somniferum, L), whether 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

(iii) any mixture with or without natural

materials, of any of the above forms of opium;

but does not include any preparation

containing not more than 0.2 per cent of

morphine, or a manufactured drug as defined

in Section 2 of the Dangerous Drugs Act,

1930;”

21. Thereafter, the Dangerous Drugs Act, 1930 (for

short, “1930 Act”) came to be enacted. The 1930 Act came to

be enacted in pursuance to the Second International Opium

Conference (Geneva Convention). The preamble of the 1930

Act would reveal that the Contracting Parties to the said

Geneva Convention resolved to take further measures to

suppress the contraband trafficking and abuse of dangerous

drugs, especially those derived from ‘opium’, ‘Indian hemp’

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and ‘coca leaf’. It defined ‘opium’ in Clause (e) of Section 2 as

under:

“2. Definitions. ………….

(e) “opium” means

(i) the capsules of the poppy (Papaver

somniferum L.);

(ii) the spontaneously coagulated juice of

such capsules which has not been

submitted to any manipulations other

than those necessary for packing and

transport; and

(iii) any mixture, with or without neutral

materials, of any of the above forms of

opium; but does no t include any

preparation 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:

“(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 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;

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but does not i nclude any preparations

containing not more than 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:

“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 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:

(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, 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

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our neighboring countries and destined mainly

to Western countries.

(ii) The existing Central laws do not provide for

investing the officers of a number of important

Central enforcement agencies like Narcotics,

Customs, Central Excise, etc., with the power

of investigation of offences under the said

laws.

(iii) Since the enactment of the aforesaid three

Central Acts a vast body of international law in

the field of narcotics control has evolved

through various international treaties and

protocols. The Government of India has been a

party to these treaties and conventions which

entails several obligations which are not

covered or are only partly covered by the

present Acts.

(iv) During recent years new drugs of addiction

which have come to be known as psychotropic

substances have appeared on the scene and

posed serious problem s to national

governments. There is no comprehensive law

to enable exercise of control over psychotropic

substances in India in the manner as

envisaged in the Convention on Psychotropic

Substances, 1971 to which India has also

acceded.”

24. It could thus be seen that the 1985 Act came to be

enacted since the three earlier enactments, i.e., the 1857 Act,

the 1878 Act and the 1930 Act were enacted a long time ago.

It was also noticed that 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

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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 noticed that, since

the earlier three enactments came into existence, 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 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 . –

(xv) "opium" means-

(a) the coagulated juice of the

opium poppv; and

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(b) any mixture, with or without any

neutral material, of the coagulated

juice of the opium poppy,

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 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 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:

(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;

(xvii) “opium poppy” means-

(a) the plant of the species Papaver

somriferum L.; and

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(b) the plant of any other species of

Papaver from which opium or any

phenanthrene alkaloid can be

extracted and which the Central

Government may, by notification in

the Official Gazette, declare to be

opium poppy-for the purposes of

this Act;

(xviii) "poppy straw" means all parts (except

the seeds) of the opium poppy after harvesting

whether in their original form or cut, crushed

or powdered and whether or not juice has been

extracted therefrom;

(xix) "poppy straw concentrate" means the

material arising when poppy straw" has

entered into a process for the concentration of

its alkaloids;”

26. In the present case, we are concerned with the

conviction in relation to ‘poppy straw’. ‘Poppy straw’ has

been defined to mean all parts of ‘opium poppy’ after

harvesting, whether in their original form or cut, crushed or

powdered and whether or not juice has been extracted

therefrom. However, the said definition excludes the seeds.

As such, ‘poppy straw’ would mean all parts of ‘opium poppy’

except the seeds. Therefore, for bringing home the guilt of

the accused for contravention 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

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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 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 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-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,-

(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 rupees or with both; or

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(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 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 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, 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 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.

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29. It could thus be seen that, for bringing home the

guilt of the accused within the ambit of Section 15 of the

1985 Act, it is necessary to establish that the contravention

is in relation to ‘poppy straw’. A combined reading of the

definition given under Clauses (xvii) and (xviii) of Section 2,

and Section 15 of the 1985 Act would reveal that, for

bringing home the guilt of the accused, it will be necessary to

establish that the seized material collected is any part of

‘opium poppy’ except the seeds. As such, what would be

required to establish is that the genus of the seized material

is ‘opium poppy’ as defined under Clause (xvii) of Section 2 of

the 1985 Act.

30. The question that requires to be considered is as to

whether it is sufficient for the prosecution to establish that

the raw material contains ‘morphine’ and ‘meconic acid’ to

bring it under sub-clause (a) of Clause (xvii) of Section 2 of

the 1985 Act or 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’

25

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.

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’.

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 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.

26

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

controlling and prohibiting the menace of drugs and

psychotropic substances.

34. The International Opium Convention was signed at

The Hague on 23

rd January 1912 (hereinafter referred to as

“the 1912 Convention”). As per the agreement, in the 1912

Convention, ‘raw opium’ was defined as under:

“Definition. – By “raw opium” is understood :

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 being aware about the fact that the

desired results could be achieved only by close collaboration

between the contracting parties, at the United Nations

27

Opium Conference of 1953, the “Protocol for Limiting and

Regulating the Cultivation of the ‘poppy plant’, the

Production of, International and Wholesale Trade in, and use

of Opium” (hereinafter referred to as “the 1953 Protocol)

came to be resolved. It will be relevant to refer to the

definitions of ‘poppy’, ‘poppy straw’ and ‘opium’ provided in

the said Protocol, which read thus:

“Poppy” means the plant Papaver somniferum

L., and any other species of Papaver which

may be used for the production of opium;

“Poppy straw” means all parts of the poppy

after mowing (except the seeds) from which

narcotics can be extracted;

“Opium” means the coagulated juice of the

poppy in whatever form including raw opium,

medicinal opium, and prepared opium, but

excluding galenical preparations;”

36. The efforts to combat the menace of drugs at the

international level continued. Recognizing that addiction to

narcotic drugs constitutes a serious evil for the individual

and is fraught with social and economic danger to mankind,

and conscious of the duty to prevent and combat this 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

28

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 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.

q) “Opium poppy” means th e 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 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 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’.

29

38. It will also be relevant to refer to the following

extracts from the “Commentary on the Single Convention on

Narcotic Drugs, 1961” (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 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

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”.

3. Should any plant which is considered not

to be a variety of the species Papaver

somniferum L., but another species of the

genus Papaver, be found to yield opium, the

plant itself and its product would not be

covered by the control provisions of the Single

Convention, but only by those of the Protocol.

The coagulated juice of the plant would for the

purposes of the Single Convention not be

“opium” but could by the operation of article 3

of the Single Convention be listed in Schedule I

30

and become a “drug” of Schedule I – like the

“opium” obtained from the species “Papaver

somniferum L.” – and thus be placed under

the regime provided by the Single Convention

for drugs in this Schedule. Its separation from

the plant, not being “opium poppy” within the

meaning of the Single Convention, would also

not be “production”, but “manufacture”.

Another way of handling such a situation

would be an amendment of the definition of

opium poppy so as to cover the additional

species found to yield opium. It might in such

a case be possible to obtain for such a revision

the consensus of the Parties to the Single

Convention required for the application of 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 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 definition of ‘poppy’,

31

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 spe cies ‘papaver

somniferum L’ but of another species of the genus ‘papaver’,

be found to yield opium, the plant itself 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

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 Statement of Objects and Reasons

itself mentioned that there had been developments at the

international level with regard to control of any drugs and

32

psychotropic substances and the 1985 Act is enacted to give

effect to the commitments in the international conventions.

Scientific Studies:

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 the early

sixteenth century and was a considerable source of revenue

for successive governments. It also noted that ‘opium’ was

freely sold as an intoxicant within the country and exported

for the same purpose to the far-eastern countries,

particularly China. This resulted in the high acreage under

‘opium poppy’ cultivation in the early part of the present

century. The flagrant misuse of ‘opium’ and its deleterious

effects physically, mentally and morally becam e 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

33

in 1960-1961. Further, the Government of India decided in

the year 1949 to stop ‘opium’ consumption for non-medical

and quasi-medical uses in the country completely by 1958-

1959.

42. It will be apposite to reproduce the relevant extracts

from the 1966 Dictionary as under:

“CHEMICAL COMPOSITION

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 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, 99; Annett et al., Mem Dep.

Agric India, Chem, 1921-23, 6-1; 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

somniferum L’ contains five major alkaloids, viz., ‘Morphine’,

34

‘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.

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 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. 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.”

45. It is thus seen that the 1998 Manual also

emphasizes that the immediate precursor of ‘heroin’ is

35

‘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 rhoeas’. It further notices that there

is no known instance of these poppies being used for ‘opium’

production. It also notices that a recent work has cast

considerable doubt as to the presence of ‘morphine’ in

‘papaver rhoeas’. The 1998 Manual also shows that the

following major alkaloids are found in ‘raw opium’:

MAJOR ALKALOIDS FOUND IN RAW OPIUM

alkaloids min% avg% max%

MORPHINE 3.1 11.4 19.2

CODEINE 0.7 3.5 6.6

THEBAINE 0.2 3.1 10.6

PAPAVERINE <0.1 3.2 9.0

NOSCAPINE 1.4 8.1 15.8

46. The 1998 Manual, on research, shows six major

constituents in ‘opium’ and ‘crude morphine’ samples, viz.,

‘morphine’, ‘codeine’, ‘thebaine’, ‘papaverine’, ‘noscapine’,

and ‘meconic acid’.

36

47. Another publication titled as “Analysis of Plant

Poisons” authored by Dr. M.P. Goutam and Smt. Shubhra

Goutam establishes 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 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:

“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 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.”

37

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 be relevant to refer to Section 3.7 of the

2021 Manual, which reads thus:

“3.7 Methods:

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.

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.

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

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.

38

Preparation of Ferric Salt Reagent: Dissolve

1 g of ferric sulphate in 20 ml of water.

Alternate Test of Meconic Acid [2] :

c) Ferric Chloride Test: Dissolve appropriate

sample of opium in water and add a drop of

dilute hydrochloric acid by few drops of 10%

solution of ferric chloride. A red colour is

appeared. Divide this solution into two parts.

Take first part and add dilute hydrochloric

acid to it in excess and warm. The red colour

of the solution remains there. Take the second

part and add a solution of mercuric chloride.

The colour of the solution does not affect.

Preparation of Mercuric Chloride Reagent:

Dissolve 5 gms. mercuric chloride in 100 ml of

water.

Dilute Hydrochloric Acid [3]: About 10%

W/W of HC1 in water

Porphyroxine Test [1]: Take a small amount

of suspected material on a spot plate and add

two drops of water. Triturate it with glass rod.

Take one drop of brown liquid from this

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.”

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

39

‘opium/crude morphine’. The Ferric Salt Test would reveal

the presence 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.

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 Court in the case of The Bengal Immunity Company

Limited v. The State of Bihar and Others

10, 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—

“… for the sure and true

interpretation of all statutes in

general (be they penal or beneficial,

restrictive or enlarging of the

10

[1955] 2 SCR 603

40

common law) four things are to be

discerned and considered:

1st. What was the common law

before the making of the Act.

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

4th. The true reason of the

remedy; and then the office of

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 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] Earl of

Halsbury reaffirmed the Rule as follows:

“My Lords, it appears to me that to

construe the Statute in question, it

is not only legitimate but highly

convenient to refer both to the

former Act and to the ascertained

evils to which the former Act had

given rise, and to the later Act which

41

provided the remedy. These three

being compared I cannot doubt the

conclusion.”

It appears to us that this rule is equally

applicable to the construction of Article 286 of

our Constitution. In order to properly interpret

the provisions of that article it is, therefore,

necessary to consider how the matter stood

immediately before the Constitution came into

force, what the mischief was for which the old

law did not provide and the remedy which has

been provided by the Constitution to cure that

mischief.”

54. The law laid down in the ca se of The Bengal

Immunity Company Limited (supra) has been consistently

followed by this Court. We will therefore have to examine the

following four factors:

(i) What was the position before the enactment of

the 1985 Act?

(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.

55. As already discussed hereinabove, the International

Conventions consistently recognized that the ‘papaver

42

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’.

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,

‘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 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

43

‘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’. 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 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 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

44

there could be some other species of ‘papaver’ from which

‘opium’ or any other ‘phenanthrene alkaloid’ could be

extracted. In this background, Clause (xvii) of Section 2 of

the 1985 Act was divided into two parts. In view of sub-

clause (a) of Clause (xvii) thereof, the plant of the species

‘papaver somniferum L’, which was already known to be used

for production of ‘opium’ was meant to be ‘opium poppy’ for

the purpose of the 1985 Act. However, in view of sub-clause

(b) of Clause (xvii) thereof, the legislature provided discretion

with the Central Government to declare the plant of any

other species of ‘papaver’ from which ‘opium’ or any

‘phenanthrene alkaloid’ could be extracted to be ‘opium

poppy’ for the purpose of the 1985 Act.

59. The legislature, being aware that scientific studies

undisputedly establish that ‘papaver somniferum L’ contains

‘morphine’ and ‘meconic acid’ and as such, it may be used

for the production of ‘opium’, by virtue 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

45

contains ‘opium’ or any ‘phenanthrene alkaloid’, it vested a

discretion with the Central 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 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 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”;

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

46

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

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 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 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.

47

64. The remedy, in our view, which the Parliament has

provided is by way of incorporating sub-clause (b) in Clause

(xvii) of Section 2 of the 1985 Act thereby empowering the

Central Government to notify any other species of ‘papaver’

from which ‘opium’ or any other ‘phenanthrene alkaloid’

could be extracted, to be declared as ‘opium poppy’ for the

purpose of the 1985 Act.

65. The true reason for the remedy, in our view, is to

empower the Central Government to include any other

species of ‘papaver’ which may be used for the production of

‘opium’ and bring the same under the purview of the 1985

Act. The reason is that, if it is found that any species of

‘papaver’ is being used for the production of ‘opium’, the

production of such a variety should not be permitted and the

same be brought under the prohibitory and regulatory

measures as provided under the 1985 Act.

Purposive 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

48

of the Act rather than interpretating in such a manner which

defeats the purpose of the Act.

67. In the case of State of Kerala v. Mathai Verghese

and Others

11, 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 notes would

mean only Indian currency notes. This Court, reversing the

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 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 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

11

(1986) 4 SCC 746

49

provision is that the citizens should be

protected 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

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 exchanged for goods or services and not

a worthless piece of paper which will bring

him nothing in return, it being a

counterfeit or a forged currency note.

Would the legislature in its wisdom and

anxiety to protect the unwary citizens

extend immunity from being cheated in

relation to Indian currency notes but show

total unconcern in regard to their being

cheated in respect of currency notes issued

by any foreign State or sovereign power?

…….”

[emphasis supplied]

68. This Court holds that the manifest purpose of the

provision was that the citizens should be protected from

being deceived or cheated. It was also held that the court

can make a purposive interpretation so as to effectuate the

intention of the legislature and not a purposeless one in

50

order to defeat the intention of the legislators wholly or in

part. It held that, if the court restricts the expression

‘currency note’ only to ‘Indian currency note’, it would defeat

the intention of the legislature inasmuch as the court makes

it lawful to possess counterfeit notes other than Indian

currency notes.

69. In the case of Baldev Krishna Sahi v. Shipping

Corporation of India Limited and Another

12, the

provisions of Section 630 of the 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:

“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) where having been placed

in possession of any such property during the

course of his employment, wrongfull y

withholds possession of it after the termination

of his employment. It is the duty of the court

12

(1987) 4 SCC 361

51

to place a broad and liberal construction

on the provision in furtherance of the

object and purpose of the legislation which

would suppress the m ischief and advance

the remedy.

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 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 who can secure

possession of any property of a company. It is

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 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 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

52

it an offence if any officer or employee of a

company having any property of the company

in his possession knowingly applies it to

purposes other than those expressed or

directed in the articles and authorised by the

Act. That would primarily apply to the present

officers and employees and may also include

past officers and employees. There is therefore

no warrant to give a restrictive meaning to the

term “officer or employee” appearing in sub-

section (1) of Section 630 of the Act. It is quite

evident that clauses (a) and (b) are separated

by the word “or” and therefore are clearly

disjunctive.”

[emphasis supplied]

70. It is thus clear that this Court held that there was no

reason to restrict the meaning of the term “officer or

employee” to the existing officers or employees. It held that a

situation where an officer or employee, though having

lawfully obtained the possession of 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 the object

and purpose of the legislation. The interpretation which

suppresses the mischief and advances the remedy has to be

preferred.

53

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 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 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 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 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 th e

machinery to deal effectively with persons

involved in, and associated with, terrorist

13

(1994) 5 SCC 410

54

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 that he does not belong to the category of

persons governed by the TADA Ac t. 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, which is the true

object of the enactment. Such a course while

promoting the object of the enactment would

also prevent its misuse or abuse. Such a

danger is not hypothetical but real in view of

serious allegations supported by statistics of

the misuse of provisions of the TADA Act and

the concern to this effect voiced even by the

National Human Rights Commission.

15. It is the duty of courts to accept a

construction which promotes the object of

the legislation and also prevents its

possible abuse even though the mere

possibility of abuse of a provision does not

affect its constitutionality or construction.

Abuse has to be checked by constant vigilance

and monitoring of individual cases and this

can be done by screening of the cases by a

suitable machinery at a high level. It is

reported that in some States, after the decision

of this Court in Kartar Singh [(1994) 3 SCC

569 : 1994 SCC (Cri) 899] , high -powered

committees have been constituted for

screening all such 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 Commission, can assist by

55

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

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 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 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 :

1984 SCC (Cri) 172] held: (SCC p. 200, para

18)

56

“18. The 1947 Act was enacted, as

its long title shows, to make more

effective provision for the prevention

of bribery and corrup tion.

Indisputably, therefore, the

provisions of the Act must receive

such construction at the hands of

the court 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 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

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

the object underlying the Act,

namely, to make effective provision

for the prevention of bribery and

corruption and at any rate not

defeat it.”

57

11. Procedural delays and technicalities of law

should not be permitted to defeat the object

sought to be achieved by the Act. The overall

public interest and the social object is required

to be kept in mind while interpreting various

provisions of the Act and deciding cases under

it.”

74. It could be seen that this Court held that a social

legislation like the Prevention of Corruption Act, 1988 ,

intended to curb the illegal activities of the public servants,

should be liberally construed so as to advance its object. It

was held that the overall public interest and the social object

is required to be kept in mind while interpreting various

provisions of the Act and deciding cases under it.

75. In the case of Balram Kumawat v. Union of India

and Others

14, 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 given

effect to. The law would have to be interpreted

having regard 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

14

(2003) 7 SCC 628

58

the offender to sneak out of the meshes of law.

Criminal jurisprudence does not say so.

24. ……..

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)

“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 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

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

59

find some 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)

‘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.’

120. It is, therefore, the court's duty

to make what it can of the statute,

knowing that the statutes are meant

to be operative and not inept and

that nothing short of impossibility

should allow a court to declare a

statute unworkable.

In Whitney v. IRC [1926 AC 37 : 95

LJKB 165 : 134 LT 98 (HL)] Lord

Dunedin said : (AC p. 52)

‘A statute is designed to be workable, and the

interpretation thereof by a court should be to

secure that object, unless crucial omission or

clear direction makes that end unattainable.’ ”

26. The courts will therefore reject that

construction which will defeat the plain

intention of the legislature even though there

may be some inexactitude in the language

used. [See Salmon v. Duncombe [(1886) 11 AC

627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p.

634).] Reducing the legislation futility shall be

avoided and in a case where the intention of

60

the legislature cannot be given effect to, the

courts would accept the bolder construction

for the purpose of bringing about an effective

result. ……”

76. A perusal of the aforesaid observations would reveal

that this Court held that, even in relation to a penal statute,

any narrow and pedantic, literal and lexical construction

may not always be given direct effect and 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.

77. In the case of Standard Chartered Bank and

Others v. Directorate of Enforcement and Others

15, 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

15

(2005) 4 SCC 530

61

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:

“23. The counsel for the appellant contended

that the penal 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 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

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

legislature intended to punish the corporate

bodies for minor and s illy 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

62

the statute?” A passage in Craies on Statute

Law, 7th Edn. reads to the following effect:

“The distinction between a strict and

a liberal construction has almost

disappeared with regard to all

classes of statutes, so that all

statutes, whether penal or not, are

now construed by substantially the

same rules. ‘All modern Acts are

framed with regard to equitable as

well as legal principles.’ ‘A hundred

years ago,’ said the court in Lyons'

case [Lyons v. Lyons, 1858 Bell CC

38 : 169 ER 1158] , ‘statutes were

required to be perfectly precise and

resort was not had to a reasonable

construction of the Act, and thereby

criminals were often allowed to

escape. This is not the present mode

of construing Acts of Parliament.

They are construed now with

reference to the true meaning and

real intention of the legislature.”

At p. 532 of the same book, observations of

Sedgwick are quoted as under:

“The more correct version of the

doctrine appears to be that statutes

of this class are to be fairly

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.”

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

63

“company, or corporation or other incorporated

body”.”

[emphasis supplied]

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

Another

16, while 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 Bureau

17, 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 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 the mere technicalities. It is

16

(2020) 20 SCC 272

17

(2008) 5 SCC 161

64

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 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:

“25. … ‘Where the language of a

statute, in its ordinary meaning 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

sentence. … Where the main object

and intention of a statute are clear,

it must not be reduced to a nullity

by the draftsman's unskilfulness or

ignorance of the law, except in a

case of necessity, or the absolute

intractability of the language used.’ ”

Thereafter, it is further observed that to

winch up the legislative intent, it is

permissible for courts to take into account

the ostensible purpose and object and the

real legislative intent. Otherwise, a bare

mechanical interpretation of the words

and application of the legislative intent

devoid of concept of purpose and object

will render the legislature inane. It is

further observed that in given

circumstances, it is permissible for courts

65

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 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 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 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

66

these treaties and conventions which entail ed 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, 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 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 of ‘opium’.

The 1878 Act so also the 1930 Act had recognized this

67

position. In the International Conventions also, this was

recognized. Though for the first time in the 1953 Protocol, in

addition to “papaver somniferum L’, any other species of

‘papaver’, which may be used for the production of ‘opium’

was included in the definition of ‘opium’, the subsequent

conventions of 1961 and 1988 again defined ‘opium poppy’

as a plant of ‘papaver somniferum L’. The scientific study

conducted at the national as well as the global level

establishes that ‘papaver somniferum L’ consists of

‘morphine’ and ‘meconic acid’. If the construction as adopted

in the impugned judgment is to be accepted, then, even if it

is found that the Chemical Examiner’s report establishes

that the contraband article contains ‘morphine’ and ‘meconic

acid’, a person cannot be convicted unless it is further

established that the contraband material has a genesis in

‘papaver somniferum L’.

83. Shri Kapil Sharma, Chemical Examiner was present

in the Court. He reiterated that the ‘morphine test’ and the

‘meconic test’ are the only two tests available worldwide to

establish that the contraband material is derived from

‘papaver somniferum L’. As already discussed hereinabove,

68

prior to enactment of the 1985 Act, it was only the plant

‘papaver somniferum L’ which was included in the definition

of 1878 and 1930 enactments. By virtue of sub-clause (a) of

Clause (xvii) of Section 2 of the 1985 Act, the same has been

retained. However, noticing that there was some material to

show that some other species of ‘papaver’ may also be used

for the 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 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

prohibitory and regulatory provisions of the 1985 Act.

69

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’, 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 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 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

70

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 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 the 1985 Act.

The Court therefore held that the offence proved against the

appellant therein clearly fell within Section 21 of the 1985

Act for illicit possession of a ‘manufactured drug’. We fail to

understand as to how the said judgment could be said to be

a proposition for holding that , unless the Chemical

Examiner’s report establishes that the contraband material

was derived from the species of ‘papaver somniferum L’,

conviction under Section 15 of the 1985 Act would not be

tenable.

87. Insofar as the judgment of this Court in the case of

Baidyanath Mishra (supra), to which a reference has been

71

made by Shri Parameshwar, is concerned, this Court, in the

case of Harjit Singh (supra), has itself held that the said

case was decided under the Opium Act and not under the

1985 Act. It has been held that the chemical analysis of the

contraband material is essential to prove a case against the

accused under the 1985 Act.

88. We are therefore of the considered view that the High

Court was not justified in holding that, even after the

Chemical Examiner’s report 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 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 observing that the Chemical Examiner’s report, in

72

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 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.

91. In the result, we hold that, once a Chemical

Examiner establishes that the seized ‘poppy straw’ indicates

a positive test for the contents of ‘morphine’ and ‘meconic

acid’, it is sufficient to establish that it is covered by sub-

clause (a) of Clause (xvii) of Section 2 of the 1985 Act and no

further test would be necessary for establishing that the

seized material is a part of ‘papaver somniferum L’. In other

words, once it is established that the seized ‘poppy straw’

tests positive for the contents of ‘morphine’ and ‘meconic

acid’, no other test would be necessary for bringing home the

73

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 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 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 for consideration afresh in

accordance with what has been held by us hereinabove.

74

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 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.

97. Pending application(s), if any, shall stand disposed of

in the above terms. No order as to costs.

…..….......................J.

[B.R. GAVAI]

…….......................J.

[C.T. RAVIKUMAR ]

NEW DELHI;

OCTOBER 20, 2022.