C.V. Rane, J.
1. This appeal is directed against the order of conviction and sentence passed by the learned City Magistrate, 11th Court, Ahmedabad, in summary case No. 48/70 on 6-11-1970, The prosecution story in the above case, was in brief, as under:
On 3-8-1969 Police Sub-Inspector Chandrasing Raol received information at about 6-30 p.m. that one person dressed in a particular manner was to go to the Central S. T. Bus Station at Ahmedabad with a suit-case containing opium. He, therefore, sent for the panchas and thereafter all of them went to the S. T. Bus station. When the members of the raiding party were waiting at the S. T. Bus station, the accused came there with a suit case. He was apprehended and when the suit case was searched in the presence of the panchas, four Kgs. of opium wrapped in a plastic paper was found from it. The accused had no permit to keep the opium in his possession, About 100 grams of opium was taken out from the above packet as a sample which was duly wrapped and sealed in the presence of the panchas. The sample was sent to the Chemical Analyser for his report. The remaining portion of the opium was duly attached under a panch-nama. Thereafter the Police Sub-Inspector filed a complaint. The accused was tried for the offence under Section 66-A of the Bombay Prohibition Act (hereinafter referred to as the Act). He pleaded not guilty to the charge. The learned Magistrate has, however, convicted the accused of the above offence and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- and in default of payment of fine to suffer rigorous imprisonment for a further period of one month. Being aggrieved by the above order the accused has come in appeal.
2. The evidence of Police Sub-Inspector Raol shows, that, on receiving information that the accused was to go to the S. T. Bus station with opium, he went there with panchas. When they were waiting near the bus station, the accused came there with a suit case. He was detained and when the suit case was searched in, the presence of the panchas, some substance in black colour wrapped in a plastic paper was found from the suit case. It smelt like opium. Its weight was found to be 4 Kgs. One hundred grams of opium was taken out by way of sample and it was wrapped and sealed in the presence of the panchas. The other part of the substance was attached under a panchnama. It has been suggested in his cross-examination that, the opium in question was found from the bus and not from the possession of the accused. Looking to his evidence as a whole, it is found that, there is no substance in the above suggestion. The evidence of Raol is fully corroborated by that of panch witness Ishwarlal Sukhlal whose evidence is found to be quite reliable. When the evidence of the aforesaid two witnesses is taken into consideration, it is found that, four Kgs. of black substance which is alleged by the prosecution to be opium was found from the possession of the accused. The learned advocate for the appellant is unable to controvert the above position.
3. The main question to be decided in this appeal is, whether what was found from the possession of the accused was opium within the meaning of Section 2(30) of the Act. According to the above section, opium means
(a) the capsules of the poppy (Papaver Somniforum L), whether in their original form or cut or crushed or powdered and whether or not the juice has been extracted therefrom; (b) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport; and (c) any mixture with or without neutral materials of any of the above forms of opium; but does not include any preparations 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.
Now, according to P.W. 4 Jadavji Trivedi who is Assistant Chemical Examiner at Baroda, the sample that was sent to him was opium containing 5.7% of morphine. He admits in his cross-examination that he had analysed the substance only to find out the percentage of morphine. He is unable to say as to what else the substance contained. In order to show that the substance in question is opium it was necessary for the Chemical Examiner to find out whether it contained any of the forms of opium specified either in clause (a) or clause (b) of Section 2(30) of the Act or any mixture with or without neutral materials of any of the forms of opium specified in the above clause (a) or (b), as contemplated by clause (c) of the above section. In the present case, however, as admitted by the Chemical Examiner he has not ascertained whether the substance in question contained any of the forms of opium or any mixture thereof as contemplated by Section 2(30) of the Act, Under these circumstances, it is rather difficult to say that the substance in question falls within any of the clauses (a), (b) or (c) of Section 2(30) of the Act. My learned brother D. A. Desai, J. has also taken a similar view in Criminal Appeal No. 1009 of 1971 decided on 12-1-1972 (Guj).
4. It is true that the substance contains more than 0.2 per cent of morphine but, unless it is proved that it also contains any of the forms of opium specified in clauses (a) or (b) or any mixture with or without neutral materials of any of the above forms of opium it cannot be treated as opium within the meaning of Section 2(30) of the Act. In this connection it may be pointed out that, the definition of 'opium' as contained in Section 2(30) of the Act is almost identical with that of that expression as given in Section 2(e) of the Dangerous Drugs Act, 1930. Now, according to Section 2 (f) of the Dangerous Drugs Act 'opium derivative' includes 'morphine', that is, the principal alkoloid 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 alkoloids 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 2(30) of the Act. Even according to the Dangerous Drugs Act, morphine which is an opium derivative is different from opium, the defination of which in both the above Acts is identical in material particulars. It can therefore, be reasonably inferred that, even for the purpose of Prohibition Act, opium is different from morphine. The Assistant Chemical Examiner seems to have lost sight of the above position. It may be that if, he had analysed the substance further, it would have been found out that, it also contained some of the forms of opium specified in Section 2(30) of the Act. But, he analysed the substance only with a view to finding out whether it contained 'morphine' probably under the impression that, if 'morphine' were detected from the substance it would be treated as an opium, only on that account. Under Section 66A of the Act, however, what is made punishable is the import, possession etc. of opium as defined in Section 2(30) of the Act and not that of 'morphine'. It is hoped that in future the Chemical Examiner will analyse the substance sent to him in the light of what is stated above. So far as this case is concerned, for the reasons stated above, it cannot be said that what was found from the possession of the accused was 'opium'. That being so, the accused cannot be held guilty of the offence punishable under Section 66A of the Act. The learned Assistant Government Pleader concedes the above position. The appeal is therefore allowed. The order of conviction and sentence passed by the learned City Magistrate is set aside and the accused is acquitted of the offence under Section 66A of the Act. Fine, if paid, should be refunded to the accused. His bail bonds stand discharged.