1. This is an appeal under Section 417 Criminal Procedure Code preferred by the State and is directed against the order of acquittal recorded by the First Class Magistrate Ratlam in Criminal Case No. 235 of 1961. The respondent was prosecuted under Section 9 (a) of the Opium Act for possession of contraband opium.
2. The prosecution case against him is that on receipt of information that contraband opium was in the possession of the respondent Station Officer Badansingh of Namli decided to lay a trap. He along with constables Kararnatkhan and Rai-singh and Panchas Onkarlal and Nandu reached the village Bhadwasa at 8 P. M. on 30-7-1961. Constable Raisingh was sent to the house of one Shakoor where the respondent had agreed to bring opium for sale, S. I. P. Badansingh, Constable Karamatkhan and the Panchas kept themselves in hiding behind the house in front of Shakoor's house.
Raisingh, who was dressed in plain clothes waited at the house of Shakoor and Shakoor informed Kanhaiyalal of the arrival of the purchaser spoken of by him earlier to him. Respondent Kanhaiyalal thereupon brought from his house contraband opium wrapped in a piece of cloth. Kanhayalal, on Shakoor's insistence gave the opium to Raisingh who smelt it and was satisfied that it was raw opium. Raisingh then put it on the ground and gave signal with a torch light which he carried. This brought the Panchas and the Station Officer and Karamatkhan on the scene. The contraband opium was seized and weighed. It was found to weigh a seer and a quarter. However it was not subjected to chemical analysis Panchanama of seizure and weighment was made On these facts the respondent was prosecuted.
3. The learned Magistrate found 'that the incriminating Article 1 was seized from the possession of the accused person' (i. e., the respondent). But he held relying upon the decision in Criminal' Revn. No. 269 of 1961 Kalian v. State of Madhya Pradesh D/~ 22-11-1961 (MP), that as the prosecution had failed to prove the percentage of morphine by chemical analysis as required by Section 3 of the fndian Opium Act it could not be said that the alleged article was opium. He therefore acquitted the accused.
4. In this appeal it is contended on behalf of the State that where there is evidence that the article in question which was seized was opium by the application of ordinary tests such as sight and smell by persons residing in the locality where opium is produced failure to subject the article to chemical analysis and to produce evidence of such analysis is not fatal to the prosecution case. The learned Government Advocate referred to the decision of Dixit, J., (as he then was) in Criminal Revn. No. 41 of 1958 Jiwanlal v. State of M. P., D/-28-2-1958 (1959 MPLJ (SN) 32), as also those of Sen, J., in Criminal Revn. No. 105 of 1962, Poona v. State, D/- 1-8-1962 (MP) and Criminal Revn. No. 156 of 1962 Swarup v. State of Madhya Pradesh, D/- 5-11-1962 (MP).
5. In order to consider the question we have first to refer to the definition of the term 'Opium'. Section 3 of the Opium Act, 1878, defines 'Opium' as follows:
'In this Act, unless there be something repugnant in the subject or context, -- 'Opium' means
(i) the capsules of the poppy (papaver somaife-rum L.), whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom;
(ii) The spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and
(iii) any mixture, with or without neutral materials, of any of the above forms of opium,
but does not include any preparation containing not more than Order 2 per cent, of morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act 1930.'
6. Having regard to this definition whether a particular article seized and alleged to be opium is so or not will depend upon whether it answers one or the other of the description given in the three clauses of the definition. In the Majority of cases when seizer of 'Afeem' or 'Kachhi Afeem' is alleged it means in common parlance opium falling under Clause (ii) i. e., the spontaneously coagulated juice of capsules of poppy and not capsules of poppy themselves, nor any mixture with or without neutral materials of the article falling under either of the first two clauses. Clauses (i) and (iii) of the definition really seek to extend the definition by legal fiction in order to prevent evasion of law. As regards the capsules of poppy themselves are concerned whether in their original form or crushed, powdered or cut with juice extracted therefrom or otherwise, little difficulty would arise. For when such capsules are seized they would not be described as Afeem in common parlance but will be differently described by the name they bear in the popular language.
Where however a mixture is alleged to be seized question of percentage of morphine may arise. A mixture containing not more than 0.2 per cent. of morphine is an excepted substance and does not fall within the definition clause. But for distinguishing 'the spontaneously coagulated juice of poppy capsules from a mixture containing morphine as low as 0.2 per cent chemical analysis cannot be said to be the only method. Where admittedly a mixture containing morphine just below 0.2 per cent or just above 0.2 per cent is seized an attepmt to prove it by the witnesses who have seen and smelt the article may not be justified and chemical analysis would alone solve the question. But where coagulated juice with apparently very little of neutral material is seized it is not difficult for persons who have occasion to see, smell and feel it that it is Afeem, i. e., it certainly contains much more than 0.2 per cent of morphine. And it is only this much that need be proved. When such evidence is laid an accused person, if he so desires can certainly lead evidence in rebuttal and establish by chemical analysis that the percentage of morphine in the article is below 0.2 per cent.
It is no doubt true that in a criminal action under Section 9 (a) of the Opium Act burden is on the prosecution to prove that the article seized from the possession of the accused is opium and it never shifts to the accused. But proving means producing such material before the Court from which the Court is led to believe that it is opium or is led to consider its being opium to be so probable that a prudent man under the circumstances of a particular case can safely act on the supposition that it is 'opium. This follows from the definition of the term 'proved' in the Evidence Act.
7. In order that an article seized may be found by a Court to be opium it is not necessary that the persons, who are examined as witnesses for proving that they had seen the article and it was opium, should have actually seen the substance in the process of coagulation or should have themselves carried out chemical analysis. Coagulated juice of capsules of poppy is a well-known substance and at least persons belonging to the District where poppy plants are grown under a license can know very well whether it is contraband opium or not.
8. Before referring to the cases of this Court upon this point it will be proper to refer to decisions of the Allahabad and Rajasthan High Courts which appear to take opposing views.
9. In AIR 1952 All 118, State v. Kaptan Singh, Kidwai and Chandaramini, JJ., held that opium in the form of coagulated juice of capsules or poppy is so well-known in India being widely used for medicinal and other purposes that it can be identified without calling an expert for identifying it. Witnesses and Excise Inspector who have seen the article and smelt it do not become expert witnesses so that before their testimony can be accepted they must set out reasons for their estimate that it is opium. Their Lordships in this case distinguished the case of this Court reported in AIR 1935 Nag 13, Ramkaran Singh v. Emperor, which related to illicit liquor.
10. In 1957 Cri LJ 237, Bhairulal v. The State (Raj), Sharma, J., of Rajasthan High Court found that the article seized and produced in the case was in the possession of the accused just before seizure yet he held that as the counsel for the prosecution was unable to say from the evidence on record whether it fell under Clauses (i) or (ii) or (iii) of the definition of opium in Section 3 of the Opium Act, the article was not proved to be opium. He consequently acquitted the accused. It is not clear from the report what was the nature of the article seized and what material was produced to prove it to be opium.
11. This Rajasthan case was followed by Razzaque, J., in Criminal Revn. No. 269 of 1961 D/- 22-11-1961 (MP) (sic), seemed to think that in that case it had been held that in all cases under Section 9 (a) of the Opium Act prosecution are under a duty to send the article seized for chemical examination and analysis and that in the absence of such examination the article cannot be called opium. As already observed the report of Rajasthan case does not contain details and it may be that having regard to the nature of article produced there the learned Judge was justified in doubting whether that fell under any of the clauses, but the decision cannot be held as laying down a broad proposition, that in all cases under Section 9 (a) of the Opium Act prosecution cannot hope to succeed in bringing the guilt home to the accused without subjecting the article seized to chemical analysis at the hands of a chemist.
12. In Criminal Revn. No. 41 of 1958, D/-28-2-1958 (MP) (Supra), Dixit, J., held that an expert is not required to say whether a certain article is or is not opium.
13. Sen, J., in Criminal Revn. No. 105 of 1962, D/- 1-8-1962 (MP) and Cri Revn. No. 156 of 1962, D/- 5-11-1962 (MP) (supra), took the view that it is not necessary in all cases under Section 9 (a) of the Opium Act to subject the article to chemical analysis.
14. For the reasons already discussed we would agree with the view taken in AIR 1952 All 118 (supra) and that taken by Dixit, J., in Criminal Revn. No. 41 of 1958, D/- 28-2-1958 (MP) (supra), and Sen, J., in Criminal Revision No. 105 of 1962, D/- 1-8-1962 (MP) and Cri. Revn. No. 156 of 1962, D/-, 5-11-1962 (MP) (supra), and hold that it is not necessary in every case under Section 9 (a) of the Opium Act to examine an expert (chemist) to prove what percentage of morphine the article contains.
15. From the statement of the accused and particularly from his answer to question No. 9 that the Afeem was not in his hand but was lying on the ground it does not appear that the accused really wanted to contend that the article seized was not opium but was a mixture containing less than 0.2 per cent of morphine.
16. Since the learned Magistrate has found that the article in question was seized from the possession of the accused but had acquitted him on the sole ground that the article seized was not subjected to chemical analysis for proving its morphine contents and therefore was not proved to be opium, the order of acquittal would be unsustainable in view of what is stated above since there was the evidence of the Station Officer and Panch Onkarlal which indicated that the article was opium.
17. But it is contended by Mr. T. N. Singh the learned counsel for the respondent that the finding of the learned Magistrate that the article in question was seized from the possession of the respondent is not correct and that consequently the order of acquittal ought not to be interfered with. We therefore propose to review the evidence npon this point.
18. It appears that the evidence of Shakur-khan and constable Raisingh indicates that it was the accused who had brought the article in question from his house. Radhugir another witness examined by the prosecution, no doubt stated that opium was lying on the ground in the Verandah of Shakurkhan's house before the respondent Kan-haiyalal was called but it appears that the witness had tried to help the respondent at the trial. The witness had stated in his examination-in-chief that the final word in the matter of settling rate at which the article was to be sold was given by the respondent and the position of Shakurkhan was no more than that. of an intermediary. The witness moreover in his earlier statement recorded by a Magistrate Ex. P/1 had stated that Kanhaiyalal had gone home and had brought opium. When he was confronted with that portion of his earlier statement at the trial he first suggested that when that statement was given by him he was experiencing a reeling sensation and that he had wrongly thus stated. He tried to give another reason- but he went back on that also and ultimately admitted that he had given the statement in Ex. P/ marked A to A. In answer to a question by the defence counsel he stated that he had given the-statement marked A-A in his earlier statement -Ex. P/1 as the police officer had threatened hiift with false- implication.
19. In our opinion the witness's earlier statement marked A to A deserves to be believed and not the statement at the trial. Considering the attitude of Radhugir the version of the accused, that Radhugir was instrumental in falsely implicating him by ' calling him at the place of Shakoorkhan, does not appear to be probable.
20. We would therefore agree with the finding of the learned Magistrate that it was the respondent who was in possession of contraband opium.
21. We may observe that although in this case we have believed the statement of Raisingh constable who was used as a bogus purchaser it is imprudent to employ a police constable as a decoy for this purpose since as a part of the investigating machinery he may stand to gain by successful prosecution of an accused under Opium Act such as this. The evidence of such witnesses is likely to be looked at with suspicion.
22. The order of acquittal for this reason does not deserve to stand. The State appeal is consequently allowed and the respondent Kanhaiyalal is found guilty of an offence under Section 9 (a), Opium Act and is sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 500/-. In default of payment of fine he shall undergo further term of imprisonment for one month.