I.S. Tiwana, J.
1. The petitioner Boota Singh was sentenced to 15 months' rigorous imprisonment and a fine of Rs. 500/-, in default' of payment of which, to further rigorous imprisonment for six months, by the Additional Chief Judicial Magistrate, Amritsar, on July 3, 1975, after trial for an offence under Section 9 (a) of the Opium Act. His appeal against the said conviction and sentence also failed in the Court of Additional Sessions Judge, Amritsar.
2. According to the prosecution, on February 8, 1972, S. I. Tarlok Singh, on the basis of a secret information held a checking at the Railway Station, Amritsar, at about the time of the arrival of the Calcutta Mail. At that time Charan Singh and Raman Kishore, P. Ws., employees of the railway were also with him. It is further alleged that Boota Singh petitioner alighted from the train carrying a bag, Exhibit P. 1, in his hand. On apprehension and search of the bag, five kilograms of Opium was recovered. A sample of the same was taken. Bulk opium and the sample were taken into possession vide memo Exhibit P. B. Ruqa Exhibit P. C. was sent to the police station for the registration of a case on the basis of which formal First Information Report, Exhibit PC/1, was recorded by A. S. I. Kishori Lal.
3. On receipt of the report of the Chemical Examiner, Exhibit PE, the accused was sent up for trial which resulted in the abovesaid conviction and sentence.
4. At the time of trial, the prosecution version was fully supported by Charan Singh, Raman Kishore and A.S.I. Tarlok Singh, P. Ws. l, 2 and 3, respectively.
5. Now before me two contentions raised by Mr. J. R. Mittal, learned Counsel for the petitioner are (i) that there being variation in the percentage of morphine (2.2%) said to have been found in the sample sent by the prosecution and the other sample (6.6%) sent at his request, the accused should have at least' been given the benefit of doubt and (ii) that the substance alleged to have been recovered from the accused was not at all opium as befined by Section 3 of the Opium Act.
6. The first argument of the learned Counsel though based oh an earlier decision of this Court is Satnam Singh v. The State (1967) 69 Pun LR 645, was negatived by both the lower courts for the reason that in spite of variance in the quantum of morphine found in the samples, the substance recovered all the more remains opium. This view finds support from two recent Division Bench judgments of this Court reported as State of Punjab v. Dara 1977 Chand LR (Cri) Pun & Har 238 and State of Punjab v. Ram Niwas (1978) 80 Pun LR 343, wherein the above mentioned single Bench judgment was specifically overruled. In the presence of these two authoritative pronouncement's I do not find any merit in this argument of the learned Counsel and reject the same.
7. The second argument, however, appears to be full of substance. To appreciate the submission, a reference to the definition of opium as given in Section 3 of the Act and the contents of the reports of the Chemical Examiners is essential. Section 3 defines opium as under:
'Opium' means -
(i) the capsules of poppy (Papaver Somniferum L.); wherever 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 0.2 per cent of morphine or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930 (2 of 1930).
The report of the Assistant Chemical Examiner. Exhibit PE, is as under:
Result : Q. R. 50.0 gm.Consumed 1.0 gm.Balance 49.0 gm.Meconic Acid present.Morphine present.Morphine % 2.2%Opinion The contents are Opium.
The seal on the exhibit was intact and agreed With the sample seal'. The opinion of the Assistant Chemical Examiner dated February 3, 1975, with respect to the sample sent at' petitioner's request, is as under:
Results. Marked here. 178-0/75Total sample received. 10 gms.Sample consumed 1 Gm.Physical appearance Dark grown Plastic Mass.Morphine Present Meconic Acid Present Morphine % 6.6%OpinionThe contents are Opium.
The seal on the exhibit was intact and agreed with the sample seal sent.'
This latter report of the Chemical Examine has not been marked or exhibited as the same was not specifically tendered into evidence by the accused. Some argument' was raised in the lower Courts about the taking into consideration of this report. Though both the lower Courts expressed the opinion that this report should have been tendered into evidence, yet the contents of this report were discussed and taken notice of vis-a-vis the earlier report, Exhibit P. E. and the arguments raised on behalf of the accused. I feel that any evidence on the record supporting the stand of the accused cannot be shut out in technicalities. It has repeatedly been held by the Supreme Court' and other Courts also that rules of procedure are meant to secure justice and not to thwart the same. I have therefore decided to treat this report' as a part of the evidence.
8. In order to show that the material recovered from the petitioner is opium, it was necessary for the Chemical Examiner to find out whether it conformed to any of the forms of opium specified in Clauses (i) to (iii) Section 3 of the Act. In the present case, however, the Chemical Examiner has not ascertained the same. No doubt it is true that as per both the reports, the substance contained more than 0.2% of morphine, but unless it is proved that it also contained any of the forms of opium specified by the three clauses of the section including any mixture with or without neutral materials of any of the other two forms of opium, it cannot' be treated as opium within the meaning of the said section. It may here be pointed out that the definition of opium as contained in this Act is almost identical with that of the expression as given in Section 2 (e) of the Dangerous Drugs Act, 1930. According to Section 2 (f) of the said act, 'opium derivative' includes 'Morphine, that is, the principal alkaloid of opium having the chemical formula C. 17, H. 19 No. 5, and its salts'. Even according to the books on Pharmacology morphine is one of the important alkaloids of opium. This shows that merely because a substance contains morphine in high percentage or otherwise, it cannot be considered as 'opium' within the meaning of Section 3 of the Act. Morphine which is undoubtedly an opium derivative is different from opium.
This interpretation of Section 3 of the Opium Act finds full support from a decision of the Gujarat High Court in Alihusen Najarali v. The State of Gujarat 1974 Cri LJ 524, on which the learned Counsel for the petitioner firmly relies. The abovesaid view of mine is further supported by two decisions of the Lahore High Court, reported as Sita Ram v. Emperor AIR 1920 Lah 263 (1) and Emperor v. C. J. Robinson AIR 1922 Lah 216. In Sita Ram's case (supra), it was held by a learned single Judge that morphia is not included in the term 'Opium' as defined in Section 3; the same not being a preparation or admixture of opium or a drug prepared from the poppy. The sale or transport of morphia was not therefore held to be an offence under Section 9. Though this view of the learned single Judge that morphia was not a drug prepared from the poppy was overruled by the latter Division Bench judgment in C. J. Robinson's case (supra) yet the Division Bench affirmed that morphia is not a preparation or admixture of opium. These Judgments were, however, given in the light of the definition of opium as it was at the relevant time and was in the following terms:
'Opium' includes also poppy head, preparation or admixture of opium, and intoxicating drugs prepared from the poppy.
In fact the Division Bench judgment was pronounced after an enquiry and recording of evidence regarding the various methods in which morphia is or can be prepared. The contention which was raised before the Court' was that though morphia may be prepared from opium, yet it could not be described as a preparation or admixture of opium. As a result of the enquiry conducted through the District Magistrate, it was found that opium is the inspissated juice obtained from the incised unripe cobwebs of the poppy, and that morphia is one of the alkaloids found in opium along with other constituents such as meconic acid, tatty matter, resin, gun caoutchouc and mineral salts. Thus there is no doubt that morphia is one of the components of opium and cannot, therefore, be called a 'preparation or admixture of opium. Though in this Division Bench judgment it was held that morphia or morhine is a drug prepared by chemical process from opium which is merely the thickened juice of the poppy and thus can be described as a drug prepared from the poppy falling within the definition of 'opium' as it' then stood, yet the fact remains that morphine by itself was not held to be opium or a mixture of any of the two materials specified in Clauses (i) and (ii) of Section 3 of the Act. The latter part of the section saying that' opium does not include any preparation containing more than 0.2% of morphine or manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930 (2 of 1930) is only in the form of an exception to the earlier three clauses. Whatever has not been exempted or excluded by this exception, cannot be held to be opium unless the same conforms to any of the forms specified in the earlier three clauses of. of the section.
9. It appears that the Assistant Chemical Examiner both the times lost sight of the above position. It may be that if he had analysed the substance further, it might have been found out' that it also contained some of the forms of opium specified in Clauses (i) and (ii) of Section 3. But he analysed the substance only with a view to find out whether it contained morphine; probably under the impression that if morphine was detected from the substance, it would be treated as opium only on that account. Under Section 9 of the Act it is the possession of opium as defined in Section 3 of the Act which is an offence, and not that of morphine. That being so, the petitioner cannot possibly be held guilty of the offence punishable under Section 9 of the Act.
10. In the light of the discussion above, I allow this petition and set' aside the conviction and sentence of the petitioner.