M.L. Jain, J.
1. This appeal has arisen in the following manner.
2. Excise Inspector, Phalodi, namely, Khanusingh P.W. 4 and Excise Inspector Banwarilal P.W. 1 checked the field of Sohansingh respondent in village Chhoti Sewahi, Tehsil Osian on April 4, 1970, and found that he was cultivating? the field in collaboration with respondent Kumbha Ram and they had grown poppy. There were 2600 plants in the field which were uprooted and taken in possession in the presence of witnesses Sukhram P.W. 2 and Lalu P.W. 3. The accused were also arrested and forwarded to the police. The poppy plants were got chemically examined and were found to be positive for opium by the Assistant Director, Chemical Section, Police Forensic Science Laboratory, Jaipur. When the challan was put up before the learned Magistrate, it was stated that it was for offence under Section 9 of the Opium Act. The learned Sub-Divisional Magistrate, Phalodi, charged the two respondents under the aforesaid section on the allegation that they had grown poppy in an unlawful manner. The learned Magistrate, after recording the evidence, however, acquitted the accused on the ground that the opium plants were not proved to have been seized from the possession of the accused. He accepted the argument advanced on behalf of the accused that if the field belongs to Sohansingh, then no offence was made out against Kumbha Ram. If, on the other hand, it was held that the field was being cultivated by Kumbha Ram, then no case was made out against Sohansingh. He also believed the statements of the defence witnesses Uma Ram D. W. 1, Fateh Singh D. W. 2 and Ramuram D. W. 3 that the field was being cultivated not by Kumbha Ram but by Umararn D. W. 1 and that on the alleged day of raid, no Excise Inspector had ever come to the field or had collected the opium plants. In this manner the learned Magistrate found that the prosecution case was doubtful and consequently he acquitted the accused. Hence the State's appeal.
3. No one appears on behalf of the accused persons. I have heard the arguments advanced on behalf of the appellant State and perused the record.
4. Now, it is obvious that the entire investigation and the arrest of the accused made by the Excise Department and the Police Department and the judgment were in ignorance of the correct law. The cultivation of poppy (opium) is regulated by Opium Act, 1857 (Central Act No. 13 of 1857) and Section 21 of this Act provides as follows,-
Any person who shall cultivate the poppy without licence from a (district. opium officer) or other officer duly authorised in that behalf, and any person who shall in any way cause, encourage or promote such illegal cultivation, shall be liable to a fine not exceeding five hundred rupees, unless the quantity of land so illegally cultivated shall exceed twenty bighas, in which case the fine may be at the of twenty-five rupees per bigha; and the poppy plants shall be destroyed, or, if opium have been extracted from them, it shall be seized and confiscated.
If the opium shall have been extracted and shall not be seized, the offender shall be liable to a further fine not exceeding the rate of thirty-two rupees per bigha of land illegally cultivated.
To my mind, the accused had contravened Section 21 of the Opium Act, 1857. Section 9 of this Act has nothing to do with the offence. The poppy plants could only be attached and could perhaps be not up-rooted. The case was also not a cognizable one.
5. Now. coming to Section 9 of Opium Act, 1878 (Central Act No. 1 of 1878), one will find that it provides for punishment for possession, transport, import or export, sale or warehousing of opium. It does not provide for punishment for growing or cultivating poppy without proper authority. Moreover, the definition of opium given in Section 3 of this latter Act, does not speak of poppy plants. The provisions as respect prohibiting and punishing poppy cultivation under Sections 4 and 9 of the Opium Act, 1878, were deleted by the Dangerous Drugs Act, 1930 (Central Act No. 2 of 1930) by Section 40 and schedule thereof. The marginal notes of these sections remained, however, unamended, though they should have been amended by the authorities concerned. Thus, it will be seen that the only provision under which unlawful cultivation of poppy can be punished is contained in Section 21 of the Opium Act, 1857. It is quite obvious that every one concerned in the case was not aware of this position of the law.
6. The approach of the learned Magistrate, while assessing the evidence, was also not correct. It was not a question as he thought of possession of opium, but was of cultivation. It is not disputed that the field and the well belonged to accused Sohansingh. He contended that in the Samwat years 2026 and 2027, he had given the field for cultivation to one Uma Ram for Rs. 1.500/- a year. The accused Kumbha Ram pleaded that he was a student and had nothing to do with the cultivation of the poppy. The learned Magistrate, however, approached the whole question as if it relates to possession of opium. It was proved by the statements of the Inspectors and other witnesses for prosecution that both the accused Sohansingh and Kumbha Ram were jointly cultivating the land and had grown poppy therein. If they were not the persons who had grown poppy, then, there was no earthly reason why the prosecution should have implicated them. It is very easy, after the case has been challaned and tried, for the accused to say that someone else was cultivating the land, not they. A heavy burden lay upon them to prove that fact which I am afraid, has not been discharged by then in this case.
7. I should have, in these circumstances, set aside the judgment under appeal and remanded the case but that would only be to prolong the agony of trial. The accused were also arrested and detained without any authority of the law because the offence which was committed by them was not a cognizable one. I also find that a lot of prejudice was caused to the accused persons in the trial by prosecuting them under a wrong provision of the law. So, I refrain from intervening and do hereby dismiss this appeal.