2009 PLP 1632 (YLR)

MEHTA KAILASH NATH KOHLI, J.

This appeal is directed against judgment dated 28th September, 2004, passed by learned Special Judge (C.N.S.), Lasbella at Hub, in C.N.S. case No.20 of 2004, whereby; appellant Muhammad Hussain son of Alam Gul, caste Achakzai, resident of Tehsil Gulistan, District Qilla Abdullah has been convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer rigorous imprisonment for twenty five years with fine of Rs.,1,00,000, in default of payment of fine, to further undergo one year simple imprisonment. Benefit of section 382-B, Cr.P.C., was granted in favour of appellant accused. Facts of the case, in brief, are that on 28th April, 2004, at 7-30 a. m. F.I.R. No.3 of 2004, under section 9(c) of Control of Narcotic Substances Act, 1997 was registered by Levies Station Lakhra, District Lasbella on the report of one Muhammad Usman, Naib Risaldar, Levies Force, Lakhra, wherein; it was stated that complainant along with other Levies officials were patrolling the area of Musyani, at 7-00 a.m. they reached at Lakhra bus stop. It was further alleged that on eastern side of the road, one suspicious person namely Muhammad Hussain son of Alam Gul, resident of Gulistan was standing along with ten sacks, on enquiry he informed the complainant that the sacks contain chaff of poppy plant, which he had brought from Khuzdar and was taking the same to Karachi, and; in order to conceal the said sacks from Coast Guards, he had brought the same through link road. Consequently, accused appellant was arrested and above said F.I.R. was registered. After completion of investigation, challan of the case was filed in the Court. Learned Special Judge (CNS) Lasbella at Hub took cognizance in the matter; charge was framed, which was denied by the appellant accused. In order to prove its case, prosecution produced following evidence:-- P.W.1 Muhammad Usman, Naib Risaldar Levies, Lakhra (complainant) appeared and reiterated the version of F.I.R. (Exh.P/1-A). He had produced ten sacks Article-P/1 and then bags Article-P/2 to be the same. In cross-examination, he stated that in the night at 8-00 p.m. they had proceeded on patrolling duty. He has stated that the place of recovery was situated at a distance of one Kilometer from Levies Station. He admitted that weight of the sacks was not made in his presence and he was unaware of the weight of said sacks. He admitted that he had not made his identification mark on the sacks and also the same were not sealed in his presence. It was admitted that no sample was drawn from the said sacks for the purposes of analysis. He denied that someone else had kept the sacks at the bus stop. He denied that the accused had no concern with the alleged sacks. He denied that at that time, accused was taking tea in a hotel situated in front of the bus stand. He denied that the recovered sacks belonged to some other person, who was left free and present accused was falsely roped in the case. It was stated that they had taken the recovered articles along with accused to Levies Station. He stated that he had verbally given information to the Tehsildar, who had visited place of recovery. He admitted that there was no document available to prove that the sacks belonged to the accused. P. W.2 Muhammad Yousaf, Sepoy, Levies Station Lakhra appeared and deposed that on 28th April, 2004, he and Muhammad Usman, Naib Risaldar were on patrolling duty, during course whereof, they reached at bus stand and saw ten sacks were lying on eastern side of the road, and; accused was standing along with the same. On suspicion, Naib Risaldar enquired from accused and thereafter he along with the articles was brought to the Levies Station and F.I.R. was accordingly registered. It was stated that weighment of the poppy was carried out and found to be 475 kilograms. He further deposed that from each sack samples of 500 grams were separated for the purposes of chemical analysis and ten sealed parcels were prepared. He had given details of weight of each sack i.e. Parcel No.1, 30 kilograms; Parcel No.2, 52 kilograms; Parcel No. 3, 40 kilograms; Parcel No. 4,47 kilograms; Parcel No. 5,43 kilograms; Parcel No. 6,45 kilograms; Parcel No. 7,50 kilograms; Parcel No. 8,47 kilograms; Parcel No. 9,47 kilograms and; Parcel No. 10,48 kilograms; He had identified his signatures on each parcel. It was stated that the said parcels were taken into possession vide recovery memo. Exh.P/2-A. He had also identified his signatures on ten bags of 500 grams. He had identified the material of ten sacks as Article-P/1; samples obtained from ten sacks Article-P/2, and; material of ten small bags Article-P/3 to be the same. He had produced sample of seal from each sack Article-P/4 to P/13. Similarly, ten bags were produced as Article-P/14, and sample of seal from each bag were respectively produced as Articles-P/15 to P/24. He had identified the accused to be the same. In cross-examination, witness stated that at about 10-00/11-00 p.m. they had proceeded on patrolling duty and at 7-00 a. m. after arresting the accused had returned to the Levies Station. It was stated that at the time of their arrival, Tehsildar was present in the Levies Station. It was stated that the sacks were taken to the Levies Station in two donkey carts. It was admitted that private persons were present on the place of recovery, but; none of them was asked about ownership of the said sacks. He denied the suggestion that accused was not present along with the sacks, while he was taking tea in a nearby hotel. He admitted that samples were not drawn at the place of recovery nor the same were sealed on spot. It was admitted that weighment of the material was not carried out on the spot. Suggestions with regard to weighment of the material were made, were replied by the witness. He had denied the suggestion that he had made false statement. P. W.3 Ghulam Muhammad Tareen, Tehsildar Lakhra, appeared in witness-box and deposed that on 28th April, 2004, complainant of the case had produced ten sacks of chaff of poppy plant, which were weighed and found to be 475 kilograms. It was stated that from each sack sample of 500 grams (total five kilograms) were separated for the purposes of chemical analysis and the same were taken into possession through recovery memo and were sealed in parcels. After registration of F.I.R, investigation was conducted by him; he had recorded the statements of witnesses. On 29th April, 2004, vide murasila Exh.P/3-A the samples were sent for chemical' analysis and interim challan Exh.P/3-B was prepared. On receipt of FSL report Exh.P/3-C the same was produced in the Court as Exh.P/3-D, he had identified the present accused to be the same. In cross-examination, witness admitted that accused was not arrested in his presence. He admitted that recovery memos. and weight of the material was conducted in the Levies Station. He has stated that after registration of the case, he had visited the place of recovery. It was stated that on the spot, he had not collected information with regard to bringing of said sacks through which vehicle by whom. He admitted that he had not recorded statements of any private persons. He admitted that the FSL report Exh. P/3-C did not disclose the weight of material sent for examination. He denied that the material belonged to some other person, who was getting down the same from a bus, was released and present accused was falsely roped in the case. He denied that accused had no concern with the alleged recovered sacks. He denied that he had not conducted proper investigation. On close of prosecution's evidence, statement of appellant accused was recorded under section 342, Cr.P.C. He had not produced any evidence in his defence, nor had recorded his own statement on oath. On conclusion of trial, learned Special Judge (C.N.S.) Lasbella at Hub, vide judgment dated 28th September, 2004, convicted and sentenced the appellant accused in the aforementioned manner. Being aggrieved of his conviction and sentence, appellant has sent this appeal through Superintendent, Central Jail, Gaddani. Mrs. Shabana Azeem, Advocate, was initially appointed as counsel for pauper appellant, and subsequently; Mr. Muhammad Qahir Shah, Advocate filed Vakalatnama for appellant duly attested by Superintendent, Jail, while Miss Shahida Parveen, Advocate appeared on behalf of State. Learned counsel for the appellant has vehemently contended that the prosecution has failed to prove the possession of appellant with regard to the sacks of poppy straw, as well as, seeds, and even; if it is assumed that the material was recovered from the appellant, the same does not fall within the ambit of `opium' and was not cognizable by the Court below. On the other hand, learned counsel for State, while referring the Full Court judgment of 7th August, 2007, in the cases i.e. Criminal Acquittal Appeal No.54 of 2003 and Criminal Appeal No.301 of 2003 etc. wherein; the same question was referred; the Honourable Full Bench was pleased to conclude that the poppy straw, as well as, poppy seed, fall within the definition of narcotics, had contended that case is cognizable within the jurisdiction of this Court. We have considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it reflects that P.W.1 Muhammad Usman, Naib Risaldar, while on patrolling had intercepted ten sacks of poppy straw along with, accused at a distance of one kilometer from Levies Station, Lakhra. Record reflects that P.W.2 Muhammad Yousaf, Levies sepoy had shifted the said bags from that place to Levies Station and samples of 500 grams from each sack were drawn and were handed over to the Investigating Officer, who had sent the same for chemical analysis. He has categorically submitted that 475 kilograms weight was found on weighing the sacks. P.W.2 had further stated that F.I.R. was lodged and accused was arrested and recovery memo. was accordingly prepared, which was produced and identified by him. He had also produced the entire articles before the Court, as well as, the remaining articles received after analysis. Statement of P.W.3 reflects that investigation was made and samples were sent for analysis and on receipt of analytical report Exh.P/3-C, the same was produced before the Court. Statement of accused under section 342, Cr.P.C. was recorded and no defence was led, and; no statement under section 340(2), Cr.P.C. was recorded. From the perusal of entire evidence, we are of the view that 475 kilograms poppy straw containing poppy seeds were recovered from the possession of appellant, and he was responsible for the same. So far as, the second argument advanced, by the learned counsel for the appellant, it is to conclude that the opium is defined in section 2(t), "opium" "poppy" means the plant of the species "papaver Somniferum L" and the "poppy straw" means all parts except the seeds of the opium poppy after mowing. From the report Exh.P/3-C produced before the Court, it also transpires that the articles contained were "Papaver somniferum". The definition provided in the Control of Narcotic Substances Act, 1997 are reproduced herein below: (v) "opium" "poppy" means the plant of the species Papaver Somni ferum L, (w) "Poppy straw" means all parts except the seeds of the opium poppy after mowing." Section 9(c) of Control of Narcotic Substances Act, 1997 comes into play with regard to possession of narcotic drug, psychotropic substance or controlled substance; the poppy straw is part of opium, is included in the definition of 2(s) of the Act, 1997. It is to further add that even "opium" "poppy" and "poppy straw" have also been defined in definition 2(v) and 2(w). The Full Bench of this Court has held in the following terms:-- "In view of what has been discussed above, in our considered view, poppy capsule of any species of papaver is included in the definition of opium as assigned under section 2(t) of the Control of Narcotic Substances Act, 1997 and possession thereof is punishable under section 9 of the Control of Narcotic Substances Act, 1997. The reference is answered accordingly." The argument advanced by the counsel for appellant has no merit. Thus, for the foregoing reasons, we see no force in the appeal, which is accordingly dismissed. H.B.T./10/Q Appeal dismissed.