' Dost Muhammad Khan, J.--This single judgment shall also decide Criminal Appeal No, 164/2013 filed from Jail by Taj Muhammad as both are against the same judgment of Lahore High Court Rawalpindi Bench, Rawalpindi dated 16.5.2013 and because both are out come of the same Crime FIR No, 174 dated 17.7.2007 registered by Police Station, Hasan Abdal district Attock under Section 9(c) of Control of Narcotic Substances Act, 1997.
' Arguments of the learned counsel for the appellants and learned counsel on behalf of State heard and record carefully perused.
2.On the above date, at 7.00 am truck No, P-3388/Peshawar was intercepted by Shakeel Ahmed, Inspector/SHO/I.O., Police Station, Hasan Abdal alongwith his police party. After a brief chase, the same was brought to halt. The present appellant was found on the front seat, while Taj Muhammad appellant of the connected appeal, was occupying the driver seat. On search of the body/ deck of the truck, 160 bags ground poppy, each weighing 50 kilograms, total weight 8000 kilograms was recovered. Allegedly, small quantity from each bag, total weighing 500 grams was separated for examination by the Chemical Examiner' for his opinion and report, while bulk of stuff was separately taken into possession. Both the appellants were arrested.
3. The Chemical Examiner report Ex-PD dated 25.7.2007 reveals as follows:-- "The sample was examed and I was led to conclude that it was poppy head. Test on back page.
' The above packet contains crushed poppy heads which can be used to cause intoxication"
4. On the reverse page of the report, for his own convenience, the Chemical Examiner has put a rubber stamp and only the blanks have been filled without showing the percentage of Meconnic Acid, Sulphuric Acid, Porphyroxin, Alkaloids, Morphine and Codeine.
' According to chemical and physiological formula, the combination of these acids and alkaloids of required percentage would constitute narcotics substance of a prohibited degree.
5. Today when the case was taken up for hearing, the learned State counsel simply relied on the definition given in Section 2, clause (t) which is reproduced below:-- "(t) "opium" means........
(i) poppy straw, that is to say, all parts of the poppy plant papaver somniferous or any other species of papaver after mowing, other than the seeds;"
6. He also referred to Clause (w) of Section--2 defining poppy straw which is as follows:- "(w) "poppy straw" means all the parts, except the seeds of the opium poppy after mowing;"
7. In view of the legal controversy, we have carefully attended to this aspect of the matter and found that the report of Chemical Examiner as is common to all experts on the subject is a rough work not upto the mark. We have noticed with great concern that Chemical Examiners are taking this important task very lightly, conveniently ignoring the fact that their report alone would render the substance to be a particular narcotic substance because under the provision of Section 34 of Control of Narcotic Substances Act, 1997, the Federal Government has been authorized to set up Narcotic Testing Laboratories and such other Institutes and Narcotics Testing Research Laboratories or notify any other laboratory or. Institute to be a Federal Narcotics Testing Laboratory for carrying out the purpose of the Act. Under the provisions of sub-section (2) thereof, the Provincial Governments have also been vested with the same and the similar authority.
8. With few exceptions, both the Federal and Provincial Governments have almost notified the existing Narcotics Testing Laboratories for the purpose of Section 34 of the Narcotics Substance Control Act, 1997 and did not establish modern laboratories, well equipped with the modern techniques, managed and headed by the experts of required qualifications and experience, essential for chemical analysis of narcotics. In this way, both the governments have not fulfilled their statutory obligation under the provision of section law. This kind of uncaring attitude on the part of the Executive fully exposes the degree of interest it has taken, to assist in the administration of justice on the matters relating to narcotics substance. For this very reason, the raw hands so- called experts and ill-equipped laboratories are forwarding reports to the Courts, bereft of sound reasons, the chemical and physiological formula and percentage of each alkaloid found in the substance is conspicuously omitted essential to form a fair conclusive opinion regarding its potency of causing intoxication.
9. Opium or opium derivatives are obtained from opium poppies (papaver somniferum), the most popular and attractive garden plants. The opium latex inside the pod is obtained through indigenous process. Sharp cuts/incision is given puncturing the pod, the liquid/latex starts leaking out and coagulates around the pod and after many hours when it changes the colour, the dried latex is scrapped. The same is then transformed into baked or consumable opium through indigenous process of light heating.
10. The baked/dried opium contains two main groups of Alkaloids. The first group is morphine, codeine and thebaine. The other group is Isoquinolines, such as papaverine and Noscapine. The First group falls within the definition of dangerous drugs (narcotics substance) as the same significantly effects the central nerve system. If the opium is chemically processed then, synthetic morphine, heroin and codeine are procured therefrom. Amongst the first category morphine is placed in the most dangerous drug like heroin. The first category of alkaloids in opium contains 10% to 16% morphine having dangerous/harmful effects causing lungs edema, respiratory conjunction, ultimately leading to collapse of cardiac and respiratory system. Although under a proper licensing system, it is also used for medicinal purpose but the smugglers involved in illegal business, supply the same to the drug edicts throughout the world.
11. Under the provision of Section 34 (ibid) read with the relevant rules, the opinion of the notified expert alone is admissible in evidence and the person found in possession of narcotics substance is invariably punished on the opinion of the expert because the Investigating Officer, the Prosecutor or the Judges being not expert on the subject cannot give legally acceptable opinion to this effect.
In this way, very heavy responsibility is placed on the qualified Chemical Examiner by the law to give well reasoned, authoritative and detailed opinion about a particular narcotics substance.
12. Keeping in view the provisions of the Act, Rules, vide SRO No, 810(1)/2001 dated November 28, 2001 were published in the Gazette of Pakistan, Extraordinary Part-II for the guidance of the Chemical Examiners and about their qualification. Under Rule 3 thereof, the chemical analysts shall be a person who has a degree in Pharmacy or Pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognized by the Federal Government for this purpose and has not less than three years postgraduate experience in the test and analysis of drugs. While, under Rule 4 the Investigating Agency is required to send a sample in a reasonable quantity taken from each bag/slab/packet to the Testing Laboratory by insured post or through special messenger duly authorized for the purpose.
' Rule 6 of the ibid Rules requires that after test or analysis, the result thereof, together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II, which shall be signed and stamped by the officer authorized and notified by the Federal Government in the Official Gazette.
13. The above legal requirements are obligatory/mandatory in nature, therefore, chemical analysis if carried/conducted in derogation of or in disregard of the required procedure, the report of the Chemical Examiner would lose its sanctity and cannot be acted upon for the purpose of convicting a person on absurd, meager, cryptic, insufficient and inconclusive report. It is a high time for the prosecution and all the government departments dealing with this subject, to realize the sensitivity of the matter because under the provisions of S. 9(c) of the Act, 1997, the punishment for possessing, transporting or trafficking and smuggling narcotics substance is death sentence or life imprisonment with a fine of no limit. No one can be deprived of his lifelong liberty or sent to gallows unless and until the Chemical Examiner possesses the required qualification and experience, duly notified by the Federal Government and his report contains elaborate reasons giving percentage of each alkaloid contained in the narcotics substance and giving a conclusive opinion as to whether the required percentage of alkaloid is sufficient to cause intoxication and the substance so analyzed clearly falls within the definition of narcotics substance or not.
14. As earlier noted, in the present case on the second page of the report of Chemical Examiner (Ex- PD) it is mentioned that the sample was consisting of crushed poppy heads of brownish colour. The Chemical Examiner has put a rubber stamp on the same page, which is as follows:-- CHEMICAL TESTS FOR OPIUM CONTENTS Test For Meconic cid Test for Sulphuric Acid___________ Test for Porphyroxin Test Alkaloids__________________ 1 Morphine____________________ 2 Codein_________________________________ ' The above rubber stamped chart does not convey any sense much less a meaning as to what actually the Chemical Examiner has written and conveyed to the Court or to the sender, in his report. Certainly it is a gross negligence on his part. He has violated the rules and mandatory procedure and is liable to be proceeded against under the E&D Rules to make it a lesson for the others.
15. During the course of hearing, we were also confronted with the correct and true definition of narcotics substance/drug, particularly, opium and its alkaloids and that what percentage of the same on consumption would cause intoxication to bring it within the definition of narcotics substance. This issue was also the subject of discussion and debate before the Lahore High Court in the case of ' Khalil-ur-Rehman v. The State (PLD 2005 Lhr. "F.B" 440).
16. After combined study of the various provisions of the definition clauses i.e, Sections 2 and 3 of the Act, one is left to the guesswo rk due to incomplete and absurd definition of 'opium' given in clause (t) of Section 2 of the Act. The same is reproduced below:--
(t) "opium' means--
(i) poppy straw, that is to say, all parts of the poppy plant (papaver somniferum or any other species of papaver) after mowing, other than the seeds;
(ii) the spontaneously coagulated juice of capsules of poppy 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."
' Similarly, under clause (w) "poppy straw" means all the parts, except the seeds of the opium poppy after mowing, while under clause (x) "poppy straw concentrate" means the material obtained after the poppy straw has been subjected to a process for the concentration of its alkaloids. In the judgment (ibid) the Lahore High Court has noted down the defects, flaws and omissions in the definition clauses however after holding such view, no directions were issued to the Legislature/Government to make good the deficiency in the relevant provisions of law.
17. Now it is deemed imperative to draw a fair inference from the definition clauses of Section 2 of the Act and if it is not so possible then to recommend and advise the remedial measures.
18. The definition of the 'poppy straw although does not expressly mention the latex in liquid or dried form but the deducible inference would be that it speaks about the entire plant including the poppy pods containing latex/milky liquid, from which opium is obtained because the intended exclusion therefrom is the seeds inside the pod. Thus, fair conclusion would be that it does not speak with clarity about the opium as well, which is part of the poppy straw. The next question thus, arises is that, primarily it is the percentage of particular alkaloids in a particular substance, which would render the substance a narcotics substance because the universal conventions too lay emphasis to that effect. However, the vagueness and absurdity in the relevant definition clauses leave behind much for debate and discussion. There is no cavil to the proposition that once it is described that the latex/liquid inside the pod of poppy plant, obtained through the above indigenous procedure, is the principal narcotics substance, the most precious one for those who indulge in illegal business of opium then empty capsules/pods, out of which the seeds and remnants/micro particulars are removed/scrapped, still would have intoxicating effect, is definitely a matter of high presumption and drawing conclusion in that way would be highly unsafe unless research based opinion, both of international and national level is incorporated in the true and correct definition of poppy straw, clearly drawing a distinction between pure opium, pods and straws including the latex of the poppy plants to categorize which one is potential narcotics substance and others of' minimum degree not causing intoxication like pure opium as presently, the definition of poppy straw under Section 2(t) is misleading being vague and absurd.
19. This clarification in the definition clause is required to be made because not only the sentence under Section 9(c) of the Act is death or life imprisonment if the quantity is of the nature mentioned therein but also for the reasons that this grave menace of drug trafficking is increasing day by day because of the poppy cultivation at massive level in the neighbouring country, so that the serious mischief posing threat to human life and dignity is suppressed in an effective manner.
The Government and the Legislature may take guidance from the international conventions beside the research oriented opinions of the experts on the subject while making amendments in, addition or omitting something from the definition clauses so that the meaning of opium with regard to poppy straw is clearly provided and present confusion in the definition clauses is adequately removed/done away. Therefore, we direct the Government to make an early effort for doing the needful as discussed above.
' Similarly, the learned Attorney General for Pakistan and the Secretary Narcotics Division are required to issue clear directions to all the Laboratories, headed by the Chemical Examiners requiring them to comply with the above guidelines contained in the rules mentioned above, otherwise such cryptic, absurd, meager and inconclusive report would be of no benefit to the prosecution in future. The required qualification and experience of each expert shall also be checkea and properly verified without any undue delay.
20. Now looking at the facts of the present case, we have found on record an application of the accused submitted to the trial Court with a request to send a reasonable quantity of the preserved sample for re-examination through any other Laboratory however, at a subsequent stage, the defence did not press the application rather abandoned this plea and it was dismissed by the trial Court through a short order. This conduct of the accused/ defence raises a strong presumption against them as they were apprehending another result adverse to them, otherwise there was no impediment in their way to have taken the matter to a logical conclusion getting clearance from the charge.
21. Accordingly, we do not find legal merits in both the appeals, which are dismissed.
' In endorse the separate note added by My learned brother Gulzar Ahmed, J.
' Sd/- ' Anwar Zaheer Jamali, J ' I have added a separate note Sd/- Gulzar Ahmed, J Sd/- Dost Muhammad Khan, J ' Gulzar Ahmed, J.--I have gone through the Judgment of my learned brother Dost Muhammad Khan, J. In these two criminal appeals. While I agree with the ultimate decision of dismissing the appeals but with due deference and with all humility at my command, I do not agree with the observations of my learned brother as respect-the report of Chemical Examiner, as respect the narcotic testing laboratory, as respect the qualifications of the Chemical Examiner, and as respect the definition of the terms "opium" and "poppy straw".
2. In the case in hand 160 bags of ground poppy total weighing 8000 kilograms was recovered.
Samples were drawn and the same were sent for analysis to the narcotic testing laboratory. Test report of the Chemical Examiner dated 25.07.2007 was received with the conclusion that crushed poppy heads can be used to cause intoxication. Both the trial Court and the High Court have believed the report of Chemical Examiner, therefore, the conviction and sentence given by the trial Court was maintained by the High Court. From the judgment of my learned brother, it appears that he has also accepted the report of Chemical Examiner as while dismissing the appeals, the judgment of the High Court has been maintained. However, as noted above, my learned brother has gone on to make observations in the judgment, which as it appear to me are not consistent with the ultimate decision made in the appeals and also do not appear to be relevant nor do I find any reason or occasion for them.
3. In dealing with the case, first in line, I would like to deal with the question of definition of the terms "opium" and "poppy straw" as has been given in Section 2(t) and Section 2(w) of the Control of Narcotic Substances, Act, 1997 (the Act). It is not necessary here to reproduce the two definitions, however, it is observed that a three members Bench of this Court in the case of Muhammad Imran V. The State (2011 SCMR 1954) has elaborately considered the two definitions and given its opinion which is as follows:-- "First of all we would dilate upon the question as to whether or not the poppy straw has been included in the definition of opium. Although this question has not been seriously raised by any of the counsel, however, for convenience it is to be noted that this question has been dealt with in the case of Khair-ulRehman v. The State (PLD 2005 Lahore 440) wherein it was argued that some portions of the poppy straw have to be excluded as these are not narcotics substance at all. In order to avoid possibility of any contradictory views by different Benches of High Court the matter was placed before the Hon'ble Chief Justice for constituting a larger Bench for reviewing the cases and for an authoritative judgment on the subject for future guidance and in the public interest. In pursuance whereof the Full Bench was constituted by the Chief Justice of Lahore High Court. The Court by a majority of two against one decided the reference. In the majority judgment, delivered by Hon'ble Mr. Justice Asif Saeed Khan Khosa (now Judge of this Court) following questions were formulated:-
(i) What exactly is that which is called 'Poast'?
(ii) Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not ?
(iii) Whether ascertainment by a Chemical Examiner regarding, the actual quantity of morphine in the recovered substance is necessary in a case of recovery of Poast?
' With regard to the first question, the Court held that the alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form. However, the seeds contained in a capsule of poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/ Doda but excluding the seeds, is generally called poppy straw and thus, every Poast/Doda is a part of poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds.
' On the second question, the Court held that the legislature appears to be quite conscious of the definition of 'poppy straw' contained in Section 2(w) read with Section 2(v) but for the purposes of defining 'opium' the legislature wanted to go beyond the scope of the provisions of Section 2(w) and Section 2(v). The expanse and all encompassing character of the provisions of Section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave me in no doubt that the legislature evidently intended that Poast or Doda of all poppy plants of whichever species is to be treated as 'narcotic drug'. The discussion made above leads me to an irresistible and inescapable conclusion that Poast or Doda, both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997.
' On the third question, the Court held that the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t)(iii) of Section 2 of the said Act and such a question has no relevance to opium in the form of parts of the poppy plant or in the form of juice of capsule of poppy. Section 3 of the said Act is confined to 'liquid preparations' only and refers to calculation of percentages only in the context of such liquid preparations. Poast or Doda by itself cannot be termed as a 'mixture' or 'liquid preparation' for the purposes of Section 2(t)(iii) or Section 3 and, therefore, in a case of recovery of Poast or Doda no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc., available in such Poast or Doda.
8. It is pertinent to mention here that originally the definition of opium was provided in the Opium Act, 1878, which reads as under:-- "Opium includes also poppy heads, preparation or admixture or opium or intoxicating drugs prepared from the poppy".
' However, by virtue of Section 40 and Schedule-II of the Dangerous Drugs Act, 1930 the definition of opium as contained in Opium Act, 1878 was altered, palpably to bring it in conformity with definition of opium provided in the former, which reads as under:- "(i) The capsule of the poppy.
(ii) The spontaneously coagulates juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport.
(iii) Any mixture with or without neutral materials of any of the above forms of opium; ' But does not include any preparation containing not more than 0.2 percent of morphine."
As or section 2(t) of CNSA, 1997, opium is defined as:--"2. Definition:-
(t) "Opium" means--
(1) Poppy straw that is to say, all parts of poppy plant (papaver somniferum or any other species of papaver) after mowing, not being seeds, from which narcotic can be extracted.
(ii) The spontaneously coagulated juice of capsules of poppy which has not been submitted to manipulation other than those necessary for packing and transport; and
(iii) Any inixture, with or without natural materials of any of the above forms of opium."
' The perusal of the above Clause(i) indicates that the definition was enlarged to include all parts of poppy plant, that is to say stalk, leaves, flowers in addition to poppy capsules and intention of legislature to enlarge the definition is very much borne out from the above said clause. Thus, the poppy straw cannot be excluded from the definition of opium."
4. It seems that the above judgment of this Court has escaped the attention of my learned brother and for this reason, this judgment does not find mention in the judgment of my learned brother.
Point that I am trying to make here is that in presence of already existing and well considered opinion of this Court on the definition of terms "opium" and "poppy straw" being already in the field, in the first place the opinion of this Court was necessarily to be considered and if any dissenting view or view different from the one already expressed was to be taken, same could have been done after having tested the said opinion and by extending and discussing reasons for not agreeing with the same. Incidentally the very existence of opinion of this Court has not been mentioned, thus for this obvious reason, there is no discussion on it.
5. It may also be noted that my learned brother has made reference to a Full Bench judgment of the Lahore High Court in the case of Khair-ul-Rehman & others V. The State & others (PLD 2005 Lahore 440) but has observed that despite finding defects, flaws and omissions in the definition clauses, the judgment has stopped short of not giving direction to the Government to make good the deficiency in the relevant provision of law. In order to comprehend this aspect of the matter, it is necessary to reproduce the relevant paras of the Full Bench Judgment of the Lahore High Court, which is as follows:- "12. Question No, (i): What exactly is that which is called 'Nast'?
' It has been agreed before us by the learned counsel for all the parties and it is also borne out from the authoritative works referred to above that in the local parlance Poast is the name given to that part of a poppy plant which has the shape of a basket, sack or pouch and it contains the seeds of such plant. This natural pouch or bulb made of the skin of the plant is meant by the nature to hold and protect the seeds of the plant contained therein. In some parts of this country this natural pouch of the poppy plant is also known as Doda. The Control of Narcotic Substances Act, 1997 calls this part of a poppy plant as 'capsule' of poppy and this finds a specific mention in Section 2(t)(ii) of the said Act. The authoritative works mentioned above as well as the learned counsel for all the parties before us are also in agreement that if an unripe capsule of a poppy plant is given an incision then a fluid oozes out of the same containing meconic acid and a number of alkaloids including narcotine and morphine which fluid thickens within a short time and becomes brown in colour and such substance is pure opium. It is also agreed at all hands that even ripe and dry capsules of poppy contain morphine and other alkaloids, i.e, opium, although less in quantity, which can be used for sedative and narcotic action. Most of the authoritative works produced by the learned counsel for the parties also confirm that alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form. However, the seeds contained in a capsule of a poppy are free from morphine. After its mowing every part of a poppy plant, including it capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and, thus, every Post/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds.
13. Question No, (ii) Whether Poast is a narcotic substance Within the nurview of the Control of Narcotic Substances Act, 1997 or not?
' Under Section 6 of the Control of Narcotic Substances Act, 1997 possession, etc. Of any narcotic drug is culpable. Section 7 of the said Act prohibits import or export, etc. Of any narcotic drug and Section 8 proscribes trafficking and financing, etc. Of any narcotic drug. Section 2(s) of the Control of Narcotic Substances Act, 1997 defines 'narcotic drug' and according to the said definition narcotic drug includes 'opium' and 'poppy straw'. Section 2(t) of the Control of Narcotic Substances Act, 1997 defines 'opium' and according to Section 2(t)(i) 'opium' means "poppy straw" that is to say all parts of poppy plant (papaver Somniferum or any other species of Papaver) after mowing, not being seeds'. It has pot been disputed before us that Poast or Doda is a part of a poppy plant and, thus, there is no difficulty in concluding that in view of the provisions of Section 2(t)(i) of the Control of Narcotic Substances Act, 1997 Post or Doda, being a part of a poppy plant falls within the definition of 'opium' and, therefore, the same has to be treated and accepted as 'narcotic drug' for the purposes of Section 2(s) of that Act. It may be true that Section 2(t) (i) also speaks of poppy straw and according to the definition of 'poppy straw' contained in Section 2(w) read with Section 2(v) only poppy plant of the species Papaver Somniferum is relevant to the definition of poppy straw but at the same time it is equally true that Section 2(t) (i) expressly travels beyond the definition of poppy straw contained in Section 2(w) read with Section 2(v) and consciously extends the definition of 'opium 'to all parts of a poppy plant whether such plant is of the species known as Papaver somniferum or is of any other species of Papaver. This clearly demonstrates the legislative intent that the specification of poppy plant contained in Section 2(w) read with Section 2(v) is not relevant for the purposes of the definition of 'opium'. Section 2(t)(i) has a larger sway than the limited scope of Section 2(w) read with Section 2(v) and it may well be that the two are intended to cater for different situations or purposes. It appears that Section 2(w) and Section 2(v) have relevance to Sections 4 and 5 of the said Act and not to the definition of 'opium' contained in Section 2(t) thereof. Sections 2(w) and 2(v) speak of 'opium poppy' and Section 4 also expressly speaks of 'opium poppy' and not just its cultivation but also gathering any portion of it. Gathering of portions of opium poppy is nothing but gathering of poppy straw and this is why Sections 2(w) and 2(v) speak of poppy straw with reference to opium poppy only. It may be pertinent to mention here that the legislature appears to be quite conscious of the definition of 'poppy straw' contained in Section 2(w) read with Section 2(v) but for the purpose of defining 'opium' the legislature wanted to go beyond the scope of the provisions of Section 2(w) and Section 2(v). The expanse and all encompassing character of the provisions of Section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave me in no doubt that the legislature evidently intended that Post or Doda of all poppy plants of whichever .Species is to be treated as 'narcotic drug'.
14. I have observed that "opium" had been defined by Section 3(i) of the Opium Act, 1878 as "poppy straw, that is to say, all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted". The same definition of 'opium' had been employed by the legislature in Section 2(e) of the Dangerous Drugs Act, 1830, Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979 and Section 2(r) of the Control of Narcotic Substances Ordinance, 1995. I have further observed that in Section 2(t) (i) of the Control of Narcotic Substances Act, 1997 the above mentioned definition of 'opium' contained in the earlier laws had been altered and the words "from which narcotics can be extracted" had been omitted by the legislature. Section 76 of the Control of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect over all other laws for the time being in force and, therefore, the earlier definitions of 'opium' contained in the earlier laws are not relevant for the present purposes. This factor strengthens my above mentioned conclusion that now all kinds of poppy plant attract the definition of 'opium'. Omission of the words "from which narcotics can be extracted" in Section 2(t) (i) of the Act of 1997 is nothing but a conscious omission by the legislature and the same unmistakably points towards the intention of the legislature in that regard. The Preamble to the Control of Narcotic Substances Act, 1997 confirms the fact that through this new legislation the legislature intended to consolidate and "amend" the earlier laws holding the field in respect of narcotic substances. It is nor for us to supply the omission by changing the present definition of 'opium' and to undo what the legislature consciously wanted to achieve. Our task for the present purposes is only to understand the legislative intent vis-a-vis the present definition, interpret it and to give effect to it. It has been asserted before us by some of the learned counsel that the present definition of 'opium' omits some words used in the definition of 'opium' contained in the abovementioned earlier laws and such omission is attributable to an oversight of the draftsman of the present law. I have found such an assertion to be nothing but misconceived as the present definition of 'opium' has been enacted not by a draftsman but by both the Houses of Parliament presumably after due consideration of every words of the proposed legislation. Such an assertion wants us to understand, and that too without any basis, that the Members of the Parliament had passed this legislation without due scrutiny of the same. I for one am not ready to subscribe to this view which attributes thoughtlessness to the Parliament. Traditions of judicial interpretation are quite well-entrenched in our country and according to the same we, like our counterparts in the other civilized and democratic countries, are to attribute wisdom to the legislature and not thoughtlessness or ignorance.
15. For what has been observed above I have entertained no manner of doubt that, as per the provisions of Section 2(t)(i) of the Control of Narcotic Substances Act, 1997, all poppy straw, i.e, all parts of a poppy plant, including Poast or Doda, of whichever species qualifies as 'opium' and opium is a 'narcotic drug'. There are, however, two exceptions to this, i.e, firstly, the seeds of a poppy plant are not included in the definition of 'opium' or even in the definition of 'poppy straw' and, secondly, a part of a poppy plant can be called 'opium' or 'poppy straw' and hence 'narcotic drug' only after it has been mowed and not before that stage. This is evident from the plain language of Sections 2(t) (i) and 2(w) itself and the reasons for the same are quite obvious. I have already observed above that the seeds of a poppy plant do not contain morphine. Apart from that if the seeds of poppy plant cannot be possessed then there would be no future crops of poppy to be sown and, thus, the permissible medical, scientific or industrial uses of' such crops would be rendered an impossibility. The provisions of Sections 2(t) (i) and 2(w) clearly manifest that even Poast or Doda of a poppy plant may not by itself be offensive as long as juice is not extracted from it or as long as it is not mowed. The juice extracted from such un-mowed Poast or Doda may attract the definition of 'opium' contained in Section 2(t) (ii) but such unmowed Poast or Doda is not by itself, hit by the definition of 'opium'. However, after its mowing, Poast or Doda, like all other parts of the poppy plant excluding the seeds, falls in the general category of poppy straw and squarely attracts the definition of 'opium' contained in Section 2(t)(i).
16. Section 4 of the Control of Narcotic Substances Act, 1997 shows that every crop of poppy is not prohibited as far as its cultivation is concerned. Cultivation of that poppy plant is prohibited which can be termed as opium poppy'. Apart from cannabis plant and coca bush it is only opium poppy which is a narcotic plant and any other kind of poppy plant is not narcotic plant. The reason for this appears to be that poppy plants of other species can be used for medical, scientific or industrial purposes under a valid licence to be issued by the competent authorities. If after mowing of such permitted crop of poppy plants no valid licence is possessed for its possession then such possession becomes culpable under Section 5 of the Act as all parts of such plants, except seeds, otherwise qualify as opium after mowing. Cultivation of a prohibited crop is an offence under Section 4 and is punishable under Section 5 and the same is different from an offence of possession under Section 6 which is punishable under Section 9. A cultivator and a possessor may or may not be the same person. Thus, nothing turns on the difference between punishments under Sections 5 and 9. One relates to an offence before mowing and the other deals with possession after mowing. There is nothing in the Act which prohibits punishment of a person for both the said separate offences. Prohibition against cultivation is intended to nip the evil in the bud and to stop the poison from being produced whereas prohibition against possession is meant to stop the poison from spreading after it has already taken effect. The difference in punishments in these respects is, thus, quite understandable.
17. The discussion made above leads me to an irresistible and inescapable conclusion that Poast or Doda, both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997".
6. The view expressed by the Full Bench judgment of the Lahore High Court was also considered by this Court in the case of Muhammad Imran (supra) this Court did not find that there was any defect, flaw or omission in the definition clauses requiring issuance of directions to the Legislature/Government to make good the deficiencies in the relevant provision of law. On my own consideration of the view taken by this Court in the case of Muhammad Imran (supra) I agree with the same and find no reason as to why the same be not accepted in the present case.
7. The next point that needs to be considered is whether there was any need for the Chemical Examiner to mention in his report showing percentage of Meconic Acid, Sulphuric Act, Porphyroxin, Alkaloids, Morphine and Codein. Incidentally, this aspect of the matter has also been commented upon in the said Full Bench judgment of the Lahore High Court and it is as follows:-- "18. Question No, (iii) Whether ascertainment by a Chemical Examiner Regarding the actual Quantity of morphine in the recovered substance is necessary in a case of recovery of Poast?
' A perusal of the provisions of Section 2(t) of the Control of Narcotic Substances Act, 1997 shows that clause (t)(i) deals with the parts of a poppy plant in their natural or crushed forms, clause (t)
(ii) deals with unmanipulated juice oozing our of or extracted from the capsule of such plant and clause (t) (iii) deals with a 'mixture' prepared from the above mentioned two forms of opium. The said provisions unambiguously show that the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t) (iii) of Section 2 of the said Act and such a question has no relevance to opium in the form of parts of the poppy plant or in the form of juice of the capsules of poppy. Section 3 of the said Act is confined to 'liquid preparations' only and refers to calculation of percentages only in the context of such liquid preparations. Poast or Doda by itself cannot be termed as a 'mixture' of 'liquid' preparation' for the purposes of Section 2(t)(iii) or Section 3 and, therefore, in a case of recovery of Poast or Doda no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc. Available in such Poast or Doda".
' This view of the Full Bench of the Lahore High Court was also accepted by this Court in the case of Muhammad Imran (supra) reference to which has already been made above.
8. It may also not be out of place to make reference to an Indian Supreme Court Judgment in the case of State of Andhra Pradesh V. V. Madipa Boosenna & others (AIR 1967 SC 1550) where the Court in Paragraph 12 has observed as follows:-- "12. Before we close the discussion, it is necessary to refer to a recent decision of this Court in Baidyanath Mishra v. State of Orissa, Cri. App. No, 270 of 1964. D/-17.04.1964 (SC). In that case, the question was as to whether the appellants, therein were in possession of opium, so as to make them liable for an offence. The opium Act of 1878, defines the expression 'opium'. The appellants contended that the article seized from them was not opium, as defined in that Act, and pointed out that the only evidence, relied on by the prosecution, to establish that the article recovered from them was opium, was the evidence, of the Prohibition staff, and that the article has not been subjected to any chemical analysis. This Court rejected that contention, in the particular circumstances of the case, and stated: "It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis.
It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary ...........Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the appellants, who themselves were licensed vendors of opium, had the slightest doubt about the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the Court that the substance be analysed to determine whether it was opium or not".
9. Thus, it can safely be concluded that there was no occasion for the Chemical Examiner to mention in his report the percentage of different chemicals, as are named above for determining the question as to whether the recovered property was "opium" or "poppy straw". It may, however, not be understood that the Chemical Examiner is not required to mention percentage of various chemical contents of the recovered property in every case. Where-ever the law requires, the Chemical Examiner is bound to give percentage of the chemical contents of the recovered property so as to give clear picture about it being a narcotic drug or not. It is true that the rubber stamp has been affixed on the back side of the report of Chemical Examiner where different chemicals are mentioned and against them certain things are written which are not clear and unreadable. My learned brother has labelled the said report to be absurd, meager, cryptic, insufficient and inconclusive. Such observation in the context of the present case, in my view, was not necessary for that the report of Chemical Examiner, as it appears, stands accepted on the basis of which the two Criminal Appeals have been dismissed. If there was difficulty in reading the report of Chemical Examiner, the Chemical Examiner could have been asked to appear before the Court and explain what he has written in his report. Subsection (2) of Section 36 of the Act provides that notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive. What I find from the record is that there was no rebuttal from the side of the appellants about the facts stated in the report of the Government Analyst and thus it became the conclusive, as per the mandate of law.
10. The next question that needs consideration is about the observation of learned brother on the qualification of the Chemical Examiner. I may note that from the side of the appellants there was no challenge before the Court about the qualification of the Chemical Examiner, who has given the report in the case and for this very reason, I do not find myself in any position to comment upon the aspect of qualification of Chemical Examiner nor in any position to call the report of Chemical Examiner as absurd, meager, cryptic, insufficient and inconclusive or to say that it does not convey any sense much less a meaning as to what the Chemical Examiner has written and conveyed to the Court in his report, I also do not find myself in agreement with the observation of my learned brother that the Chemical Examiner has committed gross negligence or has violated the rules and mandatory procedure or that he is liable to be proceeded under E&D Rules to make him a lesson for the others. As has already been said above, the report of Chemical Examiner stood accepted by my learned brother in his judgment and that be the position there seems to be no valid reason or justification with the Court to proceed and go on in making such a strong observation where the report of Chemical Examiner will itself become a questionable document, which is not the case in hand. In the face of the fact that the report of Chemical Examiner has been accepted, the only consequence of it would be that the Chemical Examiner who gave this report was a qualified person and that his report also does not suffer from any legal infirmity.
11.The next point that requires addressing is about the Government having not fulfilled its statutory obligation in not establishing modern and well equipped laboratories for testing of narcotic substances. We may note that in terms of Section 34 of the Act, narcotic testing laboratories have been established by the Government and such laboratories are also consistently generating their reports on which the Courts have been relying upon in deciding the cases before it. To the extent of establishing of narcotic testing laboratories, the Government appears to have fulfilled its statutory obligation. Whether these laboratories are modern or well-equipped, apparently there was no evidence before the Court to deal with this question nor there was any statement from the side of appellants that the narcotic substance recovered from them was not sent to a modern and well- equipped narcotic testing laboratory. In the absence of any evidence on record, a general sweeping observation that the narcotic testing laboratories established by the Government are not modern and well-equipped will be too presumptive and in dealing with the criminal cases, carrying punishment of a high degree will unsettle the magnitude of the proof that is required to be established in such cases. In dealing with the criminal cases, the Court cannot afford the luxury of dealing with the issues too liberally and going on to make observations and comments on aspects which are not directly related to the case. What I think, is that the Court needs to take great care on giving of its judgment which should confine itself to the matter in issue on the basis of evidence made available before the Court and the law applicable and there should not be any probing on the basis of speculations or presumptions unless the material before the Court justifies undertaking of such an exercise.
12. It cannot be ruled out that there may be cases where the circumstances and material available before the Court may require the Court to make observations or to give findings on the qualification of Chemical Examiner, capacity of the narcotic testing laboratory to test narcotic substance and on the report of Chemical Examiner as to whether the same in law will be conclusive or not. In the present case, there was no occasion for making discussion on these points nor were they agitated before the Court.