A.D. Koshal, J.
1. Madan Lal, aged 30 years, a resident of village Nurpur Brahmanain police Sation Mahilpur, is the petitioner before me For being found in possession of 115 kilograms of crushed poppy-heads on the 21st of April, 1970, in the area of the said village, he was convicted by Shri H. L, Randcy, Judicial Magistrate 1st Class, Hoshiarpnr. of an offence under Section 9 of the Opium Act. (hereinafter referred to as the Act) and was sentenced to rigorous imprisonment for a year and a fine of Rs. 1, 000/-, the sentence in default of payment of line being rigorous imprisonment for six months. Againg the judgment of the learned Magistrate he filed an appeal which was dismissed by Shri S.S. Kalha, Sessions Judge, Hoshiarpur, on the 22nd of June, 1972, and that is why he has come up in revision to this Court.
2. The prosecution case may be stated thus. On the 21st of April, 1970, Sub-Inspector Anokh Singh (P. W. 2) received secret information at police station Mahilpur that the petitioner was selling crushed poppy-heads in Panjpir Jhiri which lies within the revenue estate of village Nurpur. The Sub-Inspector organised a raiding party consisting of police officials including himself. After the Sub-Inspector had registered a case against the petitioner under Section 9 of the Act, the said party, headed by him, left the police station for the Jhiri on the way to which Jagga Singh (P. W. 1), who is a resident of Dhadha Khurdi and one Dial Singh were joined as members of the party at Mahilpur bus-stand. Or reaching the Jhiri the party found the petitioner sitting on a gunny bag containing 35 kilograms of crushed poppy-heads and having its mouth open. Two other bags were iying near-by and were also found to contain 40 kilograms of crushed poppy-heads each. A pair of scales and some weights were also found lying near-by. The petitioner was arrested and samples of the contents of the three bags were separately secured. These samples were found by the Chemical Examiner to be consisting of crushed poppy-heads.
3. At the trial Jagga Singh (P. W. 1) and the Sub-Inspector supported the prosecution case in full but the truth of the same was denied by the petitioner who asserted that he had been arrested from his village and given a beating by the Sub-Inspector who later on falsely implicated him in this case. The two Courts below found the statements of the two prosecution witnesses to be fully reliable even though they suffered from some discrepancies which were considered to be of no importance. The non-production of Dial Singh, a non-official member of the raiding party, as a witness for the prosecution did not, according to the Courts below, militate against the veracity of the case set up by it which was not found to suffer from any improbabilities. It was in these premises that the petitioner was convicted and sentenced as aforesaid.
4. The first contention raised by learned Counsel for the petitioner is that the latter was not shown to be in conscious possession of the poppy-heads but the same is wholly without force. The circumstances in which the petitioner was apprehended and the poppy-heads recovered bear ample testimony to his conscious possession of the contraband. He was sitting on one of the bags and the mouth thereof found open. The two other bags were lying near-by and so were the pair of scales and weights. The inference is clear that it was the petitioner and nobody else who was in possession of the bags and was so consciously.
5. It is next contended that the recovery of poppy-heads in question from the petitioner was extremely doubtful for the following reasons:
(a) Jagga Singh (P. W. 1) belongs to village Dhadha Khurd and not to the village of the petitioner, i.e., Nurpur Brahmana. The non-joinder of any person from the locality from which the recovery was made makes it suspect.
(b) The depositions of the two prosecution witnesses are discrepant. According to Jagga Singh (P. W. 1), the petitioner signed the relevant recovery memo but the Sub-Inspector denied that this was so. Again Jagga Singh (P. W. 1) deposed that the only weight lying near the scales was a one-kilogram weight, although the assertion of the Sub-Inspector on the point is that it was a half-kilogram weight. The two witnesses are also not at one on the number of bags from which samples were secured. According to Jagga Singh (P. W. 1), only one sample was taken and that from one bag. The Sub-Inspector averred that samples were taken from all the three bags.
(c) The non-production by the prosecution of Dial Singh, another non-official witness of the recovery militates against the truth of the prosecution case.
(d) Admittedly the informer of the Sub-Inspector did not accompany him. This was highly improbable.
(e) The place from which the recovery was effected was for all practical purposes a public place which was accessible to all and was, therefore, a very unreliable spot to be chosen by the petitioner for the sale of the contraband.
These reasons whether taken individually or collectively do not make me look upon the prosecution case with suspicion. The Jhiri is not shown to be a part of the abadi of village Nurpur Brahmana and there is no reason why the Sub-Inspector should have made an attempt to get witnesses from that village. On the way to the Jhiri he met Jagga Singh (P. W. 1) and Dial Singh at the bus-stand and there is nothing unnatural or suspicious about his asking them to accompany him to the Jhiri. Jagga Singh (P. W. 1) is not shown to be interested in any manner in the prosecution or the police and was rightly regarded by the Courts below to be a disinterested non-official witness, for doubting whose veracity no reason is forthcoming.
The discrepancies pointed out are very much there but then they relate to collateral matters of no importance and are also likely to arise in the case of truthful witnesses who have to give in Court a detail of events which took place in their presence sometime earlier.
Dial Singh's non-production in the witness-box also calls for no adverse comments. His testimony would merely have been a duplication of that of Jagga Singh (P. W. 1). It would have been another matter if the deposition of the latter were open to doubt on one ground or the other. That being not the case, the absence of Dial Singh from the witness-box does not militate against the prosecution case. Nor do I know the failure of the Sub-Inspector to take his informer along to the place of the recovery would help the defence. The informer had done his job and there was an end of the matter in so far as he was concerned. Thereafter it was the Sub-Inspector who was to decide whether to act upon the information and, if so, how and when. If the Sub-Inspector decided to send away the informer and to leave for the Jhiri in the company of other disinterested witnesses, no blame can be attached to his conduct.
The Jhiri was no doubt a place accessible to all and sundry but then it cannot be said that on that account it was a place unlikely to be chosen by the petitioner for the sale of contraband. On the other hand, it would afford him a very proper place for the purpose inasmuch as he would be screened from public view by the trees and other wild growth standing in the Jhiri and thus be able to carry on his illegal activity clandestinely. It may also be that the place was chosen so that the petitioner would become aware of any approaching captors in advance and make good his escape before he was caught red-handed. It is another matter that this object he could not ultimately achieve.
6. The last contention raised on behalf of the petitioner is that his conviction is bad inasmuch as the poppy-heads recovered from him were crushed poppy-heads and also because they had not been shown to be impregnated with opium. In support of the contention reliance is placed on two cases decided by this Court. In The State v. Sohan Lal , decided by Kapur and Dulat, JJ., it was held that poppy-husk or 'bhuki' was not shown to be a substance falling within the ambit of the definition of opium as contained in Section 3 of the Act. This case is of no avail to the petitioner inasmuch as it was decided when the relevant part of Section 3 of the Act was materially different from that now in force. Then it was:
3. In this Act, unless there is something repugnant in the subject or context, opium means:
(i) the capsules of the poppy (Papaver somniferum L);(ii) * * * *.
The learned Judges referred to this definition and then proceeded to examine Rules 1 (b) and 5 contained in Chapter 21 of the Punjab Excise Manual, Volume II. In Rule 1 (b) the expression 'Poppy-heads' was defined to mean the capsules of the poppy plant from which the juice had not been extracted. According to Rule 5, no person could keep in his possession without a licence poppy-heads in any quantity exceeding two seers. The learned Judges remarked that although no person could possess poppy-heads exceeding two seers in quantity, 'there is no rule which has been brought to our notice which deals with poppy husk or 'bhuki' which is the substance in dispute in the present case'. They further observed:
The case before us is a criminal case and it is for the State to show that the accused persons have committed the offence with which they are charged. In other word-;, unless the State shows that the substance which was found from the possession of the accused person is covered by the definition of the word 'opium' as given in the Act no offence can be held to have been committed, and the prosecution cannot succeed.
'Capsule' as given in Webster's Dictionary means 'any closed vessel containing spores or seeds'. Poppy husk has not been shown to be a capsule and we cannot agree that the word 'capsule' is synonymous with husk or 'bhuki', which is the name of the substance found in the present case.
The conclusion arrived at by the learned Judge was a very plausible deduction, if T may say so with great respect, from the law then in force. It was in fact to overcome the situation created by their decision that an important amendment in Section 3 was effected shortly afterwards through the Opium Laws (Amendment) Act, 1957. The Statement of Objects and Reasons appended to this legislation before it was brought on the statute book declares, inter alia:
Among the substances included in the definition of 'opium' in the Opium Act, 1878 (1 of 1878) and in the Dangerous Drugs Act, 1930 (2 of 1930) are capsules of the poppy (Papaver somniferum L.). Crushed capsules commonly called poppy husk or 'bhuki', whether extracted or not, contain a certain percentage of morphine and are often used as addiction producing intoxicants. The Government has been administering the Acts in the view that capsules included crushed capsules as well; but a recent decision of the Punjab High Court has ruled that the present definition of opium does not cover crushed capsules, that is, poppy husk. The definitions in the two Acts are now sought to be amended so as specifically to cover crushed capsules.
By Section 2 of the 1957 enactment referred to above, Clause (i) of Section 3 of the Act was amended to read as follows:
(i) the capsules of the poppy (Papaver somniferum L.), whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.
The amendment makes it clear that capsules of the poppy would be opium whether they are in their original form or are cut, crushed or powdered and whether juice has been extracted from them or not. The present Clause (i) is no longer susceptible of the interpretation which was put upon the then existing Clause (i) by Kapur and Dulat, JJ. It may further be noted here that the rules framed by the Punjab Government under Section 5 of the Act, being the Punjab Opium Order, 5956, were also amended so as to bring them in conformity with the new definition of opium, by means of Punjab Government Revenue Department Notification Nos. 1136-E and T (VII)-58/703, dated the 21st of March, 1958 and 4076-E and T (VII)-59/4216, dated the 6th August, 1959. The relevant part of Rule 1, as amended, states:
1. In these orders unless there is anything repugnant in the subject or coatext:
* * * ** * * *(d) the expression 'poppy heads' means the capsules of the poppy (Papaver somniferum L) whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom. * * * *
Rule 5 was amended to read as follows:
5. The possession of opium (including poppy-heads) in any quantity by any person except under and in accordance with conditions of a permit granted under the Punjab Opium Prohibition Rules, 1959, or under an appropriate licence or permit granted under the Opium Act, 1878, or the Dangerous Drugs Act (1930), or the Medicinal and Toilet Preparations (Excise Duties) Act, 1952 is prohibited.
It is quite clear that after these amendments came into force, poppy-heads could not legally be possessed without any licence in any quantity and in any form and whether or not juice had been extracted from them. The ratio of the decision in (supra), therefore, is no longer open to the petitioner in support of the proposition that he has not committed any offence.
The other case relied upon by learned Counsel for the petitioner in Gujar Singh Mangal Singh v. The State , decided by Falshaw, J. Therein it was held that possession of poppy-heads from which opium had been extracted was not unlawful. This decision also proceeds on an interpretation, of the Opium Act and the rules framed thereunder as they stood before the amendments referred to above and is, therefore, of no advantage to the petitioner for the reasons already stated.
7. In the result I hold that the prosecution has succeeded in establishing its case against the petitioner beyond reasonable doubt. His conviction is, therefore, well based. Tn view of the quantity of poppy-heads involved, the sentence imposed on him can also not be considered excessive. The petition, therefore, fails and. is dismissed.