J.M. Sheth, J.
1. This appeal is filed by the original accused who has been convicted of an offence punishable under Section 66-A of the Bombay Prohibition Act, 1949 (which will be hereinafter referred to as 'The Act'), by the City Magistrate, 2nd Court, Ahmedabad, in Summary Case No. 879 of 1970, and sentenced to suffer six months, rigorous imprisonment and to pay a fine of Rs. 750/- and in default of payment of fine to undergo one month's further rigorous imprisonment. He is convicted of the said offence for possession of 1,500 grams of opium without pass or permit.
2. This appeal came up for hearing before our learned Brother B. K. Mehta, J. It was urged before him on behalf of the appellant (original accused) that the evidence led by the prosecution was not sufficient to prove the fact that the substance found in possession of the appellant, even if the prosecution evidence is believed, was 'opium' within the meaning of Section 2(30) of the Act. It was the possession of opium falling within that definition which was prohibited and possession of such opium was made punishable under Section 66-A of the Act. In support of his arguments, the Advocate appearing for the appellant (Mr. B. C. Patel), had relied upon the imported decisions of this Court-(i) Decision of M. P. Thakkar, J., in Criminal Appeal No. 179 of 1969, decided on 30-9-1970; (State v. Vasantrao Khanderao) (2) decision of T.U. Mehta, J., in Criminal Appeal No. 968 of 1969, decided on 1-9-1971; (Ismailbhai Rasulbhai v. State) and (3) decision of D. A. Desai, J., in Criminal Appeal No. 1009 of 1971, decided on 12-1-1972. (Bai Habiban v. State) He had also relied upon my decision in Criminal Appeal No. 982 of 1965, decided on 9-6-1967, (State v. Narsinhbhai Rambhai) wherein the question involved was regarding 'Charas'. He also relied upon the decision of N. G. Shelat, J. in Criminal Appeal No. 312 of 1966, decided on 5th April, 1968; (Rahimbhai Kalubhai v. State) and the decision of S.H. Sheth, J., in Criminal Appeal No. 211 of 1970, decided on 15-11-1971, (Mahyuddin v. State) wherein also question of charas was involved; and the decision of T. U. Mehta, J. in Criminal Appeal No. 356 of 1970, decided on 3-12-1971, (Faiyazkhan Hayatkhan v. State) wherein also the question of charas was involved. B. K. Mehta, J., felt that these decisions given by different single Judges of this Court require consideration at the hands of a larger Bench. In his opinion, as expressed in the referring judgement, in view of certain observations made in Modi's Medical Jurisprudence and the decision of Lahore High Court in Emperor v. C.J. Robinson, 23 Criminal Law Journal 580, the aforesaid decisions require re-consideration.
3. Mr. B.C. Patel, appearing for the appellant, has urged before us that the possession of every form of opium, has not been prohibited under the provisions of the Act. It is the duty of the prosecution to establish that the substance found in possession of the appellant was 'opium' falling within any of the three categories of 'opium' referred to in the definition Section 2(30) of the Act. In the instant case, Mr. Patel submitted, the evidence of Chemical Analyser at Ex. 12, and his reports regarding chemical analysis of the two samples sent to him, from the substance attached under the Panchnama, reveal that he opined that it was 'opium' as the morphine content of the samples examined by him exceeded the limit of 0.2 per cent. He has not stated in his evidence that on examining the substance in question, he found the capsules of poppy (Papaver Semniforum L), whether in their original form or cut or crushed or powdered and whether or not the juice has been extracted there-front or that it was the spontaneously coagulated juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport or any mixture with or without neutral materials of any of the above forms of opium. In short, his argument was that neither in the reports. Exs. 9 and 10 of the Chemical Analyser, or in the evidence of the Chemical Analyser, any data was given to indicate that the substance found from the possession of the appellant fell within any of these three categories. It only reveals that the morphine content exceeded the limit of 0.2 percent. Mr. Patel has, therefore, submitted that if it was found that the case fell within the category referred to in clause '-C and the data was present there for coming to that conclusion, as the morphine content exceeded admittedly in the instant case the limit of 0.2 per cent., the substance found would have been termed as 'opium' within the meaning of this definition clause. In the absence of any such data to indicate that it fell within any of the three categories mentioned in Clauses (a), (d) and (c) of Section 2(30) of the Act, from the mere find of morphine content in the substance in question exceeding the limit of O.2 percent., the Court cannot necessarily conclude that the substance found in possession of the appellant was 'opium' within the meaning of the definition given in Section 2(30) of the Act. In support of his arguments, he has referred to the aforesaid judgments as well as the judgment of C.V. Rane, J., in Criminal Appeal No. 840 of 1970, decided on 15-3-1972. (Alihussain Nazaralli v. State) He has also relied upon the decisions of other High Courts to which we will make reference at an appropriate stage.
4. Mr. K. M. Chhaya, learned Assistant Government Pleader, appearing for the respondent-State, has urged that the moment it was found that the substance contained morphine, it must be necessarily concluded that it was 'opium' within the meaning of this definition and the possession of it will be sufficient to hold the appellant guilty of the offence in question. It is urged by him that Morphine can only be prepared from poppy and if that is so, the moment the morphine content is found in the substance and if that morphine content exceeds the limit referred to in Clause (c) of the definition clause, it is established conclusively that the substance is 'opium' within the meaning of that word given in the definition clause. It is further submitted by Mr. Chhaya that in the instant case the Chemical Analyser's reports, Exs. 9 and 10, indicate the presence of meconic acid. It is contended by Mr. Chhaya that morphine is a principal alkaloid that would be found along with other alkaloids in the opium. Mr. Chhaya has, therefore, submitted that the moment the morphine content of the substance is proved to have exceeded the limit, viz. the limit of 0. 2 per cent., it will be proved that the substance is 'opium' within the meaning of Section 2(30) of the Act. He has, therefore, contended that the order of conviction and sentence passed against the appellant was proper and legal.
5. For appreciating the rival contentions urged at the Bar, it is necessary first to refer to the definition of 'opium' given in Section 2(30) of the Act. It reads:'
(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, 1950.
A glance at this definition indicates that the definition is not an inclusive definition. The definition clearly indicates that opium must fall within any of these three categories referred to in Clauses (a), (b) or (c). But the legislature has intended to exclude from this definition of 'opium' certain preparations, and that is why, the further part of the definition reads:
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.
It would, therefore, mean that even though the substance may be falling within any of the aforesaid categories, the legislature wanted to exclude certain substances and that is why, the aforesaid excluding part of the section has been engrafted. If there is any preparation containing not more than O.2 per cent, of morphine, that preparation will have to be excluded, even though it may be covered by any of the aforesaid categories. It also indicated that a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930 was also to be excluded. As any preparation containing not more than 0.2 per cent, of morphine was excluded, one cannot as a necessary corollary, infer or deduce that any preparation which contains more than 0.2 per cent, of morphine, was 'opium' within the meaning of Section 2(30) of the Act, without proof of anything more.
6. Section 17 of the Act, which falls in Chapter III dealing with 'Prohibitions', is material for our purposes. It reads:
No person shall:
(a) possess opium;
(b) transport opium;
(c) import or export opium;
(d) sell or buy opium; or
(e) consume or use opium.
It is, therefore, evident that in this Chapter III which deals with 'Prohibitions', it is the possession of 'opium' that is prohibited and it is that opium (i.e. opium in the forms referred to the Section 2(30)) that is prohibited under the provisions of this Act.
7. Section 66-A of the Act, which falls in Chapter VII, dealing with 'Offences and Penalties', in material for our purposes. It reads:
Whoever, in contravention of the provisions of this Act, or of any rule, regulation or order made there under or of any licence, pass, permit or authorisation granted by or under this Act, imports, exports, transports, consumes, uses, possesses, sell or buys, opium shall, on conviction, be punished....
It is thus evident that the offence will be committed by the appellant only if he is found in possession of opium in contravention of the provisions of the Act, or of any rule, regulation or order made there under or of any licence, pass, permit or authorisation granted by or under the Act. It is, therefore, evident that for sustaining the order of conviction and sentence passed against the appellant, it must be proved that the appellant, was found in possession of opium as defined in Section 2(30) of the Act.
8. With these preliminary observations, we will now refer to Modi's Medical Jurisprudence and Toxicology, 18th Edition, page 625 and 626, relied upon by Mr. Chhaya in support of his arguments. It is stated therein:
Opium is the air dried juice obtained by incision of the unripe capsules of the white poppy, Papaver Somniferum. The white poppy belongs to N.O. Papaveraceae, and is grown in India, Persia, Asia Minor, Turkey, China, and Egypt, also cultivated in England and other cold countries, like Russia and Yugoslavia.
Poppy capsules (Posh Ka Doda) when they are ripe and dry, contain a trace of opium and are used for their sedative and narcotic action....
Poppy seeds (Khas-Khas) are innocuous and white in colour, and are used as food opium occurs in more or less rounded, irregularly formed or flattened masses, weighing from 250 to 1,000 grammes, and having a strong characteristic colour and bitter taste. When fresh, it is plastic and internally moist, coarsely granular or nearly smooth and reddish or chestnut brown, but becomes hard, brittle and dark brown on keeping. It is a highly complex body, containing about twenty-five alkaloids, combined with meconic, lactic and sulphured acids. Of these the most important is morphine which occurs in combination with meconic acid. Next in importance are codeine, narcotine, papaverine and thebaine. Indian Opium yields from 9.5 to 14.2 per cent, of morphine, 1.8 to 4 per cent, of codeine, 3.9 to 7.6 per cent, of narcotine, 1 per cent, of papaverine and 0.5 to 1 per cent, of thebaine....
Morphine C17H79O3N.-This is named after Morpheus the Greek god of dreams and is a phenanthrene alkaloid to which the poisonous properties of opium are chiefly due.... It forms crystalline salts, of which morphine hydrochloride and morphine sulphate are pharmacopoeial preparations and morphine acetate is a non-official preparation....
At page 630 of this book, is stated:
Pethidine hydrochloride and Methadone are Morphine like synthetic narcotic analgesics and give rise to almost similar symptoms of poisoning and need the same treatment.
Mr. Chhaya has laid considerable emphasis on the statement made under the caption-Chemical Analysis-at page 631. It reads:
To ascertain whether the suspected article contains opium or not, it is necessary to detect the presence of meconic acid and morphine, if possible.
In our opinion, no much importance can be attached to this statement made, which refers to Chemical Analysis. It is true that in the instant case, Ambalal Maganlal Dudhwala, who made the chemical analysis, has asserted in his evidence that the substance was 'opium' and there is no material cross-examination on that point. In the reports also, it is stated that the substance is 'opium' under the Bombay Prohibition Act, 1949. Mere assertion by him would not be sufficient. Expert's opinion after all is an opinion evidence. He has to give the scientific data on the basis of which the court can arrive at its own conclusion. In the instant case, we find that there is no such scientific data. This Court will not be justified in coming to the conclusion on mere assertion of such an opinion without any scientific data brought on the record in aid of his opinion, that the substance found in possession of the appellant was 'opium'.
9. In Emperor v. C.J. Robinson, 23 Criminal Law Journal 580, there was additional evidence led and it gave necessary scientific data. On the basis of it, certain statements have been made in that judgment. At page 580, it is observed:
It appears from Watt's Dictionary of Chemistry, Volume HI, page 639, that morphia or morphine is one of the constituents of opium, and that its quantity Varies from 3 to 15 percent. The learned Vakil for the appellant contends that morphia is a preparation or admixture of opium, and that the drug can be prepared also from the poppy. This contention is controverted by the Learned Counsel for the respondent who argues that, though morphia may be prepared from opium it cannot be described as a preparation or admixture of opium, nor is it prepared from the poppy....
In view of the importance of the issue we consider that it is necessary to order an enquiry into the question whether morphia is a preparation or admixture of opium or whether it is an intoxicating drug prepared from the poppy.
After the necessary additional evidence was recorded, it has been observed:.It is, however, clear that it is a drug prepared by a chemical process from opium which is merely the thickened juice of the poppy, and it can, therefore be properly described as a drug prepared from the poppy. It is true that in the process of manufacturing morphia from the poppy an intermediate substance, namely, opium, or inspissated juice of poppy, is prepared, but that circumstance does not furnish any ground for holding that morphia is prepared from poppy.
We must, therefore, hold that morphia is an alkaloid prepared from the poppy, and it is beyond doubt that it is an intoxicating drug. While accepting the view expressed in Sita Ram v. Emperor 22 Criminal Law Journal 8, that morphia is not preparation or admixture of opium, we are unable to concur in the conclusion that is not a drug prepared from the poppy.
Upon the evidence, we are of opinion that morphia is an intoxicating drug prepared from the poppy, and that it fulfills the requirements of the definition of 'opium' contained in Section 3 of the Opium Act, I of 1878.
It is, therefore, evident that in that case, on the basis of evidence such a conclusion was reached by the Division Bench of the Lahore High Court. In the instant case there is no such evidence led by the prosecution as stated earlier.
10. In the Encyclopedia Americana Volume 20, at page 764, under the Caption 'Opium', it is stated:
Opium is defined by the United States Pharmacopoeia as the 'air dried milky exudation obtained by incising the unripe capsules of Papaver somniferous Linne or its variety album (Fam. Papaveraceae). 'The Oriental poppy is an annual plant which require cultivation under specific conditions of soil and climate. The plant. whose height ranges from two to four feet, bears a few large showy solitary white, pink, or purple flowers each from three to seven inches in diameter. Each plant bears three or four fruit capsules. Shortly after the flower falls, incisions are made in the capsule, drops of juice exude and solidify on the surface, and the next day the dried brown material is scraped off. This material is known in commerce as gum opium....,,;.Friedrich W. A. Serturner, a German pharmacist, first isolated the alkaloid (nitrogenous base) morphine from opium in 1805. Prior to this discovery only crude extracts of opium were available for medicinal purposes. The discovery of morphine a pure chemical compound, led to the search of other pure materials in opium as well as in other crude plant drugs, and eventually pure materials largely displaced crude drugs in medical practice.
Over two dozen alkaloids have been isolated from opium as well as vegetable proteins, sugars salts, and plant steroids, The pharmacological or medicinal activity of opium resides in the alkaloids of which only three, morphine, codeine, and papaverine, have important use. Morphine constitutes 10 per cent, by weight of the crude opium; the total alkaloids constitute 25 percent in addition to the naturally occurring alkaloids of opium several compounds have been synthetically derived from morphine and codeine:these agents include here in, dining, and apomorphine, Chemically the opium alkaloids may be divided into two classes of compounds, phenanthrene and benzyli-soquinoline. The former group includes the addictive agents like morphine and codeine. The latter agents, although legally classified as narcotics, do not produce addiction and are without psychologic effect.
In view of the aforesaid position when we are concerned with the question, whether possession of opium by a person is an offence under the Act or not, in view of the clear, definition given in Section 2(30) of the Act, we must have necessary data to decide whether it falls within one of the three categories referred to, in that section. In the absence of any such data, we cannot come to the conclusion that- 'opium' falls within any one of the forms as required under the Act, the possession of which is prohibited under the Act. In our opinion, the learned single Judges of this Court in the aforesaid decisions have rightly come to the conclusion that in the absence of such evidence, a person cannot be held guilty of an offence punishable under Section 66A of the Act.
11. Mr. Patel, appearing for the appellant, has invited our attention to several decisions of different High Courts which have taken a similar view.
12. In Bhairulal v. The State of Rajasthan 1957 Criminal Law Journal 237, a single Judge of the Rajasthan High Court has, at page 238, observed:
Opium within the meaning of Section 3 is- (1) the capsules of the poppy; (2) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport: and (3) 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, 1936.
Mr. Devisingh was not able to say whether the article in question came under the first or the second or the third category given above. Simply saying that the substance was opium would not do.
It is thus evident that the Rajasthan High Court had to deal with a similar question. Definition of 'opium' given in Section 3 of the Opium Act, 1878, is practically in pan materia with the definition given in Section 2(30) of the Act.
13. In re. Ramapuram Ayyanna, : AIR1963AP334 , it is observed by the Andhra Pradesh High Court;
For a conviction under Section 9(a) Opium Act, the prosecution must prove (i that the accused was in possession of a substance; and (ii) that substance was opium falling within one or other of the categories included in the definition of opium in the Act. In all such cases therefore 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.
14. In The State v. Sohan Lal A.I.R. 1956 Punjab 159, a Division Bench of the Punjab High Court has observed:
In a case under Section 9(a) 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, the offence cannot be held to have been committed. The word 'capsule' is not synonymous with husk or 'bhuki'. Therefore possession of poppy husk is no offence.
We are, therefore, of the opinion that unless the prosecution has been able to prove that the substance found in possession of the appellant is 'opium' of one of the forms referred to in the definition given in Section 2(30) of the Act, from the mere fact that morphine found exceeded the limit, one could not necessarily conclude that the substance found in possession of the appellant was 'opium' within the meaning of Section 2(30) of the Act. It was the duty of the prosecution to bring on record scientific data in the evidence of the chemical analyser to enable the court, to form an opinion that the substance found was 'opium' within the meaning of Section 2(30) of the Act, possession of which was prohibited under the Act. The order of conviction and sentence passed against the appellant, there* fore, cannot be sustained.
15. We, therefore, allow the appeal and set aside the order of conviction and sentence passed against the appellant. He is acquitted of the offence he was charged with. Fine, if recovered from him, is ordered to be refunded to him. His bail bond is ordered to be cancelled.
Mr. Patel, for the appellant, does not challenge before us the order of confiscation of the muddamal, as it is his contention that it was not found from the possession of the appellant. That order, therefore, remains unchanged.