Sanjeeva Row Nayudu, J.
1. This revision is directed against the judgment and order of the Court of Session, Kistna Division, Masulipatam dated 20th July, I960 in Criminal Appeal No. 75 of 1960 on the file of the said Court, confirming the conviction and sentence of the petitioner passed by the Addl. District Munsif-Magiatrate, VJjayawada in Calendar Case Mo. 326 of J959 on the file of the said Court.
2. The petitioner herein was charged before theSecond Addl. Munsif-Magistrate, Vijayawada under Section 9(a)of the Opium Act (1 of 1878) and convicted of that chargeand sentenced to four months' simple imprisonment and (sic)fine of Rs. 50/- and in default to simple imprisonment for (sic)further period of one month.
3. Against this, he preferred an appeal to the Court of Session, Kistna at Masulipatam. The learned Sesions Judge confirmed the conviction and sentence and dismissed the appeal. Hence the present revision.
4. It may be necessary at the outset to briefly notice; the facts, which are fairly simple:
5. The case of the prosecution is that the petitioner was seer in Frenchpet, Vijayawada under the Hotel Ratna at 5-30 P.M. on 8-10-1959 coming from the side of the railway station and holding a brown canvas bag in his hand. The Sub-Inspector of Police, Law and Order of the Second Station, Vijayawada, who happened to be there with some of his constables, questioned the petitioner and apparently the letter got confused. Thereupon the suspicions of the Sub-Inspector having been roused, he searched the hand-bag, which was being carried by the petitioner marked in the case as M. O. 1, in the presence of two persons, one or whom is examined in the case as P. W. 1. He found a lump of opium marked in the case as M.O. 11, mapped in oil paper, which was covered in turn with a newspaper. Besides, M.O. 11, there were other articles in the bag, such as, a shirt, a pair of spectacles in a case, a fountain pen, comb and two one rupee notes. The lump was weighed and was found to weigh fifty tolas. Thereupon, the Sub-Inspector of Police arrested the petitioner and seized the articles under a mediators' report marked in the case as Ex. P-1. He took the accused to the police station with the property, and registered a case under Section 9 (1) of the Opium Act. He prepared F.I.R. Ex. P-2 and filed the charge-sheet in the case.
6. The evidence for the prosecution consisted of the Sub Inspector of Police, P. W. 2 and of one of the mediators, Majji Satyanarayana, P. W. 1.
7. The accused pleaded not guilty to the charge and denied the offence. His case is that he is a resident of Kurnool and he had come to Vijayawada from Kurnool on 7-10-1959 and stayed at the Modern Hotel having booked room No. 17 therein at 11 A.M. on 7-10-1959, that he had come to Vijayawada In order to attend his party meeting, and that he also attended the Krishna District Backward Committee Meeting as an invitee on the evening of 8-10-1959 from 4 to 6-30 P. M. that he went back to the Hotel, Modern Cafe at about 7 P.M. when the Sub-Inspector of Police and two or three police constables came and enquired of him as to one Hussainappa, the occupant of room No. 17 in the Modern Cafe along with the petitioner, that on his Informing them that he was not in the room, the Sub-Inspector took him (petitioner) to the police station and showed M.O. 11, the lump, and asked him if it belonged to him, that the petitioner denied the same and thereupon, the Sub Inspector took him into custody and put up this case.
8. Three points have been urged by Shrlmathi Sithama-halakshmamma the learned counsel for the petitioner in this revision :
Firstly, that there is no proof in the ease to show that M.O. 11 alleged to have been seized from the possession of the petitioner was In fact opium, and that it conformed to the type of opium, the possession whereof is prohibited under Section 4 of the Opium Act. (I of 1878);
Secondly, she claimed that there Is no satisfactory proof that the accused was in possession of M. 0. 11 or that ft had been recovered from him in the search alleged to have been made by P. W. 2 on 8-10-1959 at 5-30 p.m., as alleged by him;
Thirdly, that the learned Sessions Judge dismissed the appeal of the petitioner, without considering his defence, namely of alibi, and giving a finding thereon.
9. On the first point taken by her, she contended that M.O. 11 has not been shown to be opium at ail, and in any case, the requirements of the definition of 'opium, as contained in Section 3 of the said Act have not been shown to have been fulfilled in this case, that the substance of M.O. 11 has not been sent for chemical analysis, that no expert had been examined to prove that it is opium, and that In this case there is not even the evidence of the Excise or Prohibition Officer acquainted with opium to confirm or prove that M.O. 11 is opium. She points out that both the Courts below erred in assuming that the substance in question was opium, that the learned Sessions Judge merely relied for his conclusions, on the observations made by the trial Magistrate and that the latter expressed the opinion without investigation by mere superficial observation, and that the requirements of law as to proof are not satisfied in this case. She placed reliance on the decision of the Madras High Court in Karuppiah Nadar, In re, AIR 1951 Mad 885 and of Rajasthan High Court reported-in Bhairulal v. The State, 1957 Cri. LJ 237 (Raj), both of which decisions have been referred to by the learned Sessions Judge.
10. The learned Public Prosecutor contended that opium is a common commodity, the quality and characteristics whereof are generally known, that the Magistrate was quite competent to form an opinion in the matter, and that there Is no reason why that opinion should not be regarded as valid or acceptable.
11. Before I advert to the respective contentions on this point as well as on the matter arising for decision in the case, it would be useful to refer to the relevant provisions of the Opium Act, having bearing on this case.
12. Section 3 of the Act contains the definition of Opium and it is in the following words:-
'In this Act, unless there be something repugnant in the subject or context, 'opium' means -
(i) the capsules of the poppy (POPAVER 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 oplum, 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 Drags Act, 1930.'
Section 4 prohibits, among other things, possession of opiumand is in the following words:
'Except as permitted by this Act, or by any other enactment relating to opium for the time being in force, or by rules framed under this Act, or under any such enactment, no one shall--(a) possess opium;
XX XX XX XX XX'
Section 9 of the Act contains penalty for contravening the provisions of the Act or of any Rules made thereunder and' duly notified. This section is in the following words:
'Any person who, in contravention of this Act, or ofrules made and notified under Section 5 or Section 8,--
(a) Possess opium, or
xx xx xx xx xxshall, on conviction before a Magistrate, be punishedfor each such offence with Imprisonment for a termwhich may extend to one year, or with fine which mayextend to one thousand rupees, or with both;and, where a fine is imposed, the convicting Magistrate shall direct the offender to he imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced.'
13. It may be seen from the above section that what is declared an offence under Section 9 is the possession of opium, opium being the substance defined in Section 3 of the Act. Hence, before a charge under Section 9 (a) is established, the prosecution must prove:
(i) that the accused was in possession of a substanceand
(ii) that that substance was opium falling within one or other of the categories included in the definition of opium in the Act.
14. Shrimaihi Sithamaiakshmamma, the learned counsel far the petitioner, contends that even assuming for the sake of argument that the substance M.O. 11 was recovered from the possession of the petitioner, there is no proof that the substance is opium, coming within the definition of Section 3 of the Act.
15. The only evidence in the case on this point is that of P.W. 2., the Sub-Inspector cf Police, who merely says that he found a lump of opium M. O. 11 in the bag of the accused wrapped in an oil paper and covered with a newspaper. There is nothing in his evidence to show either that he has examined it or that he had satisfied himself by such examination or other investigation conducted by him that the substance M. O. 11 is opium. The evidence of P. W. 1, the only other witness in the case for the prosecution, does not throw' any more light. Barring the passing reference that the Sub-Inspector searched the bag of the accused and took out the opium wrapped in an oil paper and covered in newspaper, there is nothing else stated by the witness, lt is not disputed that the substance M. O. 11 was not sent for chemical analysis, nor has it been sent to an Excise or Prohibition Officer, whose duty it is to deal with such commodities in the course of his official business, Hence, there is no material on record from which a reasonable conclusion could be drawn that the substance M. O. IT is opium.
16. The next thing to consider in this connection is the observation made by the learned Magistrate. He merely stated in his judgment that he had examined M.O. 11 by smelling and by looking at it and he had no doubt that it was opium. Accordingly he concluded in his judgment that it was not necessary to send it to any expert or chemist, as contended for by the accused before him. Apart from the impropriety and the undesirability of Courts constituting themselves as witnesses in the cause which they were charged with the duty of deciding, I hardly can accept a Munsif-Magistrate as a competent person to judge whether a certain substance shown to him is opium within the meaning of Section 3 of the Act. It is clear from the definition that any substance even if it is opium as ordinarily understood would not be opium within the meaning of the Act and for purposes of the Act, if it contained less than 0.2 per cent, of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930. Even the learned Magistrate on his own showing made no investigation into the matter, except using his senses of smell and sight, and obviously he was not in a position to say what the composition of morphine was and of the percentage of morphine or the content if any of the other drug referred to in Section 2 of the Dangerous Drugs Act, 1930.
In the circumstances, therefore, I attach no weight or value, to the superficial observation made by the learned Munsif-Magistrate. in the first place, he is not competent la determine whether M. O. it is opium or not, as he is not a chemist or a chemical expert and it would not be competent even for an expert to give an opinion, unless ha conducted an analysis and performed the necessary tests from which he could draw whatever inference he might, as to the consistency of and the composition of the material in question. The learned Munsif-Magistrate merely observed in this connection as follows:
'I examined it by smelling and by looking at it and 1 have no doubt to say that it is opium.'
17. In : AIR1951Mad885 (2) at p. 885 (2)). Panehapahesa Ayyar, 1. observed as follows:
'For Courts and convictions, scientific proof cf a reliable variety regarding the pills relied on by the prosecution is needed. There was no proof here by any expert chemist or analyst that there was any opium contained in the bottles seized from these petitioners; nor was there any proof that the petitioners knew or had reason to believe that these tiger pills contained any opium.'
The conviction of the accused under Section 9 (a) of the Act was set aside by the learned Judge on the ground that the substance recovered from the accused was not established to be opium within the meaning of the Act.
18. To a similar effect are the observations made by Sharma J. of the Rajasthan High Court in 1957 Cri LJ 237 at p. 238 (Raj), it was observed by the learned Judge as follows:
'As regards the nature of the article, there is no doubt that the prosecution has failed to prove that it was opium within the meaning of Section 3 of the Opium Act. In cases like the present it is the duty of the prosecution to send the article in question to the chemical examiner for chemical examination because, without it, it cannot be said as to how much percentage of the substance is there which would make its possession culpable.'
19. The learned Sessions Judge wrongly explains away this decision on the ground that that decision was given before the Act was amended in 1957, because, as seen from the section extracted by the learned Judge in that decision, his Lordship was only dealing with the amended section. That apart, I fail to see how the amendment could have made any difference in regard to the question that was decided in that case. As against this decision, the learned Public Prosecutor placed reliance on a decision reported in State- v. Kaptan Singh, 0043/1952 : AIR1952All118 . It is true that the learned Judges In that case observed that on the facts of that case it was unnecessary to call any expert to establish the identity of the substance recovered from the accused; but apparently in that case, there was the testimony of the Excise Inspector, which was considered sufficient to prove that the substance recovered was opium. With great respect to the learned Judges, I cannot subscribe to the proposition that where the offence is merely the possession of a certain substance, it would be unnecessary to secure proof as to the identity, or composition, or the nature of the substance. In all such cases, in my opinion, the substance in question must be analysed by an expert competent to determine the composition of the vegetable matter like opium, and his opinion must be available to the Court for its consideration before a conclusion could be reached as to whether the substance in question is opium or not. This is even more important in a case like the present one, where in the nature of things, the offence did not involve any mens rea, as mere possession is declared an offence. There is nothing in the Act which says that that possession should be either with knowledge or with having reason to believe that it was the substance which it has been shown to be.
20. On the material placed in this case, it is not possible to come to a conclusion that the substance M.O. 11 is opium within the meaning of the definition of the Act and that, even if it had exhibited any external qualities of opium, the requirements of the definition have not been satisfied, namely, that it contained more than 0.2 per cent, of morphine or other drug as defined in the Dangerous Drugs Act. Hence, on the first point, itself, I experience no difficulty in coming to the conclusion that the conviction in this case should be set aside.
21. As the matter has been argued on the other points as well, I shall advert to them. Srjmathj Sithamaha-lahshmamma contended that the search and the seizure in this case are shrouded in suspicion, that all the rules and the safeguards provided by the Opium Act as well as the Code of Criminal Procedure have been flung to the winds, and consequently, no reliance can be placed on the evidence of such a search and seizure as has been done m this case. She points out that under Section 15 of the Act power is given, to seize opium when found in open places, to the officers of the departments concerned, namely, Excise, Police, Custom, Salt or Revenue, and that Section 16 however provided that all searches under Section 14 or Section 15 shall be made in accordance with the provisions of this Code of Criminal Procedure. Section 18 of the Act provides for penalty for vexatious search or seizuro and arrest and Section 19 of the Act provided that the Collector of the District, Deputy Commissioner or other officer authorised by the State Government in this behalf, may issue a warrant for the arrest of any person, whom he has reason to believe to have committed an offence relating to opium and for the search, whether by day or night, of any building or vessel or place in which he has reason to believe opium liable to confiscation to be kept or concealed. Section 20 provides that every person arrested, and thing seized, under Section 14 or Section 15 shall be forwarded without delay to the officer in charge of the nearest police station and every person arrested and thing seized under Section 19 shall be forwarded without delay to the officer by whom the warrant was issued. Section 21 provides for the making of a full report of all the particulars of such arrest or seizure to his immediate official superior within fortyeight hours next after such arrest or seizure by the officer making any arrest or seizure under the Act.
22. The main point that is sought to be made by the learned counsel for the petitioner is that the alleged search or seizure was made, according to the Sub-Inspector himself, without his having had any information or suspicion that the contraband article like opium is being carried by the accused. It is further pointed out that the persons chosen as the mediators did not belong to the place, but were mere passers-by, that only one of them had been produced, and no explanation has been given for the non-production of the other, and that the search must be regarded as illegal, and in any case no reliance should be placed on the prosecution evidence adduced in the case.
23. As against this, the learned Public Prosecutor placed reliance on a decision of the Supreme Court reported In Sunder Singh v. State of U. P., (S) : 1956CriLJ801 , wherein it was made clear by their Lordships that where a search was conducted in a manner not In conformity with the provisions of the Code of Criminal Procedure, that by itself did not affect the factum of seizure, although it would affect the weight of evidence in support of the search and the recovery. The learned counsel for the petitioner points out that it is the weight of the evidence that she questions and that no credence should be placed on the evidence of the witness of the type of P.W. 1. She points out that if a seizure in a public place in Vijayawhad taken place, certainly more respectable people would have been forthcoming, and, at any rate, should have been chosen as the mediators, and not a casual witness like P.W. 1. There is no doubt that considerable suspicion attaches to the circumstances In which the alleged seizure is said to have taken place. The very fact that the Sub-Inspector of Police, P.w. 2 had absolutely no information against the accused and that he merely accosted him on seeing him, as he looked like a person from outside, renders his story of detention hardly convincing. It is not explained, nor is it understood, why the Sub-Inspector should have planted himself at that place with a number of constables, on the off-chance of questioning a passer-by and discovering a crime. It is obvious that P.W. 1 is a stranger to the accused whom he met for the first time there, and I have grave doubts whether he could have identified the accused as the person who was stopped by the Sub-Inspector of Police at that place. Normally, this Court would not go into the evidence in revision, but, unfortunately, in the instant case both the learned Magistrate as well as the learned Sessions Judge had approached the matter as If it were a civil case, overlooking the important presumptions with which they ought to have started in the consideration of a criminal case, namely, that an accused person is innocent and that the burden of establishing the charge is on the prosecution entirely. However, in flew of my finding on the first point, it is unnecessary to pursue , the matter further.
24. There is also much force in the contention of Shri-mathi Sithamahalakshmamma that the learned Sessions Judge did not consider the defence put forward by the accused, namely, the defence of alibi. She points out that it was open to the learned Sessions Judge to have considered the , evidence in support of the alibi and rejected it, but he: did not do so. But so long as the plea of the accused is : not considered by the learned Sessions Judge, his confirmation of the conviction of the accused in the present case : is unsupportable. It is clearly wrong of the learned Sessions Judge to have overlooked this point and convicted the , petitioner, without judicially considering the plea put for-ward by the accused and the evidence in support of that plea. No further action however, is called for, in view of the finding already reached by me on the first point in the case.
25. In the result, this revision petition is allowed. Theconviction and sentence of the petitioner are set aside. Heshall be directed to be set at liberty. The bail bonds arecancelled and the fine, If any, paid shall be refunded.