Gujarat High Court
Chhaganbhai Amarsinhbhai Parmar vs State Of Gujarat on 6 January, 2021
Bench: Vineet Kothari, Gita Gopi
C/LPA/877/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 877 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 12740 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 877 of 2016
With
R/LETTERS PATENT APPEAL NO. 876 of 2016
In
SPECIAL CIVIL APPLICATION NO. 12644 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 876 of 2016
In
SPECIAL CIVIL APPLICATION NO. 12644 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==================================================================
1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
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CHHAGANBHAI AMARSINHBHAI PARMAR & 11 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
==================================================================
Appearance:
MR PJ KANABAR(1416) for the Appellant(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
MR UTKARSH SHARMA ASST. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
Page 1 of 9
Downloaded on : Sun Feb 14 12:49:49 IST 2021
C/LPA/877/2016 JUDGMENT
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/01/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. An interesting question arises in the present intra Court appeal filed
by the appellants M/s. Chhaganbhai Amarsinhbhai Parmar and Ors. trader
and consumers aggrieved by the judgment and order dated 28.4.2016 of
the learned Single Judge dismissing the writ petition filed by the
appellants.
2. The appellants-writ petitioners claimed in this Special Civil
Application that "Poppy Capsule" is not "Poppy Straw" and, therefore,
the Central Government as well as the State Government could not ban
the consumption of the "Poppy Capsule" under Section 74A of the
Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for
short) and the relief was claimed by the petitioners on the anvil of Article
19(1)(g) and 21 of the Constitution of India namely, Freedom of Life and
Freedom of Trade.
3. The bone of contention raised by Mr.P.J.Kanabar, the learned
counsel for the appellants is that "Poppy Capsule" is not a Narcotic
Substance and is not covered by the definition of Narcotic Drugs under
Section 2(xiv) which includes only coca leaf, cannabis (hemp), opium,
"Poppy Straw" and all manufactured drugs out of such substances and
since "Poppy Capsule" is not mentioned in the said definition it is not so
covered. It was also urged on behalf of the appellants that Gujarat Poppy
Capsule Rules, 1963 defined "Poppy Capsule" and accordingly to Rule
C/LPA/877/2016 JUDGMENT
2(1) of these Rules "Poppy Capsule" (Papaver Somniforum L) includes
Poppy which has been lanced and dried and from which juice has been
extracted they are either in their original form or cut, crushed or
powdered form.
4. On this genesis, a case was sought to be built up by the appellants
which are in the category of traders of the said commodities and
consumers in two different Writ Appeals before us. A challenge was laid
to the order issued by the State Government on 5.5.2015 whereby, in
terms of the various Notifications of the Central Government, the State
Government issued an Order of 1st June, 2015 gradually reducing the
quantity of consumption of "Poppy Capsules" from 500 grams to 400
grams and so on over a period of one year finally totally ban the
consumption of "Poppy Capsule" w.e.f. 1.4.2016 in the State of Gujarat.
5. Learned Single Judge elaborately discussed all the contentions
raised on behalf of the appellants and negatived them by the detailed and
well reasoned order made on 28.4.2016 which is in appeal before us. The
said order dated 5.5.2015 was passed by the State Government under
Section 139 of the Gujarat Prohibition Act, 1949 on the ground that the
Central Government has repeatedly recommended and insisted upon
discontinuing the use of "Poppy Straw" covered by the provisions of
NDPS Act, 1985 and in consequence of these consistent directions of the
Central Government, the State Government thought it proper to gradually
reduce and finally discontinue the use of "Poppy Straw" in the form of
"Poppy Capsule" w.e.f. 1.4.2016. The other shade of argument raised by
the learned counsel for the appellants is that since the quantity of opium
in the "Poppy Capsule" does not include any preparation containing
more than 0.2% of morphine, therefore, it does not have any adverse
effect on the health of any person and, therefore, should not fall within
mischief of NDPS Act, 1985.
C/LPA/877/2016 JUDGMENT
6. On the other hand, Mr. Utkarsh Sharma, learned counsel for the
State vehemently opposed the submissions and urged before us that
"Poppy Capsule" is not different from the "Poppy Straw" as it is only
after the extraction of juice from the "Poppy Straw" in the cut, dried
form or in powdered form, the said quantity of 0.2% is put in the capsule
and is sold in the market, which is having the harmful effect and the very
intention of directions issued by the Central Government and the
impugned order issued on the State Government on 5.5.2015 was to
prohibit the abuse of drugs, as it is a prohibited drug or Narcotic
Substance under the provisions of NDPS Act and the impugned orders of
the State Government, therefore, cannot be assailed by the petitioners.
7. Having heard the learned counsels on both the sides and upon
perusal of the detailed reasons assigned by the learned Single Judge while
dismissing the writ petition filed by the appellants, we are of the
considered opinion that there is no merit in the present writ appeals and
the same deserve to be dismissed. The reasons for the same are as under:
7.1. Merely because "Poppy Capsules" are not separately defined in
the NDPS Act, it does not take out the same from the ambit and mischief
of the said enactment under which the Central Government has power to
even direct the State Governments to prohibit the use of opium including
"Poppy Straw" in any form in the State and by the impugned circular
dated 5.5.2015 the State Government in our opinion has rightly invoked
the powers under Section 139 of the Gujarat Prohibition Act, 1949 to
prohibit the use of "Poppy Capsule".
7.2. The whole argument of the learned counsel for the appellants is
raised on a misconception that "Poppy Capsule" is a different
commodity from "Poppy Straw". Irrespective of the form in which
C/LPA/877/2016 JUDGMENT
"Poppy Straw" after it being dried, cut and powdered is put in the
capsule, which is nothing but a packing given for containing the said
minimal quantity of opium in that and, therefore, it nonetheless remains
opium only and thus this misconception cannot be allowed to carve out
an exception for the mischief of the provisions of NDPS Act for the said
product which is nothing but "Poppy Straw".
8. The definition of "Poppy Straw" in Section 2 (xviii) in the NDPS
Act 1985 is very clear wherein it is said that "Poppy Straw" means all
parts (except the seeds) of the opium poppy after harvesting whether in
their original form or cut, crushed or powdered form and whether or not
juice has been extracted from the same. Therefore "Poppy Straw" can
be with the juice or without the juice. For packing the minimal quantity
of poppy straw, the capsule, which is made of gelatin, is used to make it
marketable. If the juice of the "Poppy Straw" has been extracted and
the same has been dried, cut and/or powdered amounting to manufactured
goods of "Poppy Straw" and packed in a capsule, does not remove the
said commodity from the ambit and scope of the said enactment whose
avowed purpose is to prevent drug abuse at national and international
level. The definition of "Narcotics Drugs" in Section 2 (xiv) of NDPS
Act clearly includes manufacturing of drugs out of those substances also.
In our considered opinion, so long as the substance in the capsule form is
covered by the definition of NDPS Act and the Central Government/State
Government takes steps under the powers vested with them to prohibit
the use thereof, no valid exception to the same can be taken.
9. We may usefully refer to the judgment of the Hon'ble Supreme
Court in the case of Ajaib Singh vs. State of Punjab [2000 Cr.L.J. 2270]
which was also relied upon by learned Single Judge in which the Hon'ble
Supreme Court held that "Poppy Husk" also falls within the definition of
"Poppy Straw" as defined under NDPS Act.
C/LPA/877/2016 JUDGMENT
9.1. The judgment of Gujarat High Court in Hathi @ Mangalsinh
Ramdayalji vs. State of Gujarat [1993 (2) GLR 673] relied upon by
learned counsel for the petitioners before us is distinguishable. In that
case while dealing with the Criminal Appeal against conviction, the
Division Bench of this Court held on facts as under:
"Thus, in view of the definition of opium poppy under
NDPS Act, the substance to be opium poppy must be
either the plant of the species papaver somniferum L
or any other species of papaver from which opium or
any phenanthrene alkaloid can be extracted and such
extracted substance may be declared to be opium
poppy for the purpose of NDPS Act. Therefore to say
that a substance is an opium poppy, it must be proved
by the prosecution that it is either the plant of the
species of papaver somniferum L or it is the plant of
any other species of papaver from which opium or
any phenanthrene alkaloid can be extracted and may
have been declared to be opium poppy for the
purpose of this Act.
8. On substance being found from possession of
accused it was sent to the Forensic Science
Laboratory for analysis as the same was alleged to be
opium poppy under the NDPS Act. It was analysed
and report is at Exh.10, on record. Report shows that
the contents of the exhibit has been identified as
fragments of poppy capsule-pos doda). As the
botanical report was not on record, we had called for
the said report and the concerned expert was
C/LPA/877/2016 JUDGMENT
examined by us as a Court witness and his report is
also taken on record. In the botanical report also it is
shown that specimen is well fragments of poppy
capsule. The reports of the Forensic Science
Laboratory do not say that the substance belongs to
the species papaver somniferum L and/or other
species of papaver from which opium or any
phenanthrene alkaloid can be extracted and the
Central Government may by notification in the
Official Gazette, declare such extract to be opium
poppy. It is not shown in the report that opium or
phenanthrene alkaloid can be extracted from this
substance and such extract may be declared opium
poppy by the Central Government. Thus in our
opinion, simple find of fragments or wall fragments
of poppy capsules (posna doda) by itself does not
become opium poppy".
(emphasis supplied)
9.2. Here, we are not concerned with Fragments of poppy capsules, but
opium itself packed in capsules. The co-ordinate bench of this Court has
given a detailed analysis of the opium poppy which is covered under the
provisions of NDPS Act, by which, the basic substance should be
papaver somniforum L and/or other species of papaver and on the basis
of said analysis, the Court however found on facts that since Forensic
Laboratory report did not give any such finding but the goods seized from
the accused were only identified as fragments of poppy capsule- pos
doda. Therefore, simple find of fragments or wall fragments of poppy
capsules (posna doda) would not by itself become opium poppy.
10. In the case before us however, there is no dispute that the Poppy
C/LPA/877/2016 JUDGMENT
Capsule contains opium or morphine, though to a minimal extent of
0.2%. Therefore, the existence of NDPS substance in these capsules is
not even disputed by the petitioners-appellants before us. This judgment
is therefore, of little help of the petitioners-appellants before us and on
the contrary supports the reasoning which we have given above.
11. On a further legal research, we have also come across another
judgement in the case of State of Himachal Pradesh vs. Sucha Singh &
Anr. [2011 9 RCR (Cri.) 92] of Himachal Pradesh High Court, in which
it was held that even green poppy straw does fall under Section 15 of
NDPS Act as "Poppy Straw". The Himachal Pradesh High Court
followed the decision of Ajaib Singh (supra) of Hon'ble Supreme Court
while saying so. A similar view was also taken by Punjab High Court in
the case of Saudagar Ali vs. State of Punjab [2018 Law Suit (P&H)
1297].
12. We are further of the opinion that there is no question of claiming
fundamental right to consume a prohibited drug on the anvil of Article 21
of the Constitution of India. The said argument is absolutely
misconceived and misplaced. On the contrary, we are constrained to
observe that looking to the wide spread drug abuse in the country at the
various levels even starting at the school level these days, is a serious
threat to the dignified life of the people of the society and, therefore, such
distorted arguments in the court of law having no substance do not
deserve to be considered with any kind of hair splitting exercise.
13. We, therefore, do no find merit in the present appeals filed by the
writ petitioners and we fully and respectfully agree with the reasons
assigned by the learned Single Judge while dismissing the writ petitions
filed by the petitioners.
C/LPA/877/2016 JUDGMENT
14. The appeals are accordingly dismissed with no order as to costs.
Notice discharged.
15. In view of the above, Civil Applications for stay also stand
disposed of.
(DR. VINEET KOTHARI,J)
(GITA GOPI,J)
NAIR SMITA V.
