STATE OF KERALA Vs. ANTONY

JUDGEMENT

(1.) THE appellant is the State represented by the Excise inspector, Trichur. A complaint was filed against the respondent Antony far an offence punishable under S. 9 (a) of the Opium Act I of 1878. The facts of the case are as follows: Pw 1, the Circle Inspector of Excise, Trichur got information on 21-12-1973 that some poppy capsules had reached the Trichur Railway Station from Madhya Pradesh and that they were kept in the goods shed of that station. He immediately went to that shed and took into custody as per Ext. P1 mahazar 73 bags of poppy capsules and entrusted the same for safe custody to the railway authorities. Subsequently, on 27121973, 72 bags of poppy capsules arrived at the station and the same were taken into custody as per Ext. P2 mahazar. Three more consignments 160 bags on 71 74,160 bags on 9 174 and 150 bags on 11-1-1974 were taken into custody by pw. 1, as per Exts. P3 to P5 mahazars. Each bag contained about 40 Kgs. of poppy capsules The consignments were boarded in the train from Madhya Pradesh and were booked to self at trichur. Enquires by pw. 1 regarding the name and particulars of the consigner did not reveal any results. On 191974 the respondent put in a petition, Ext. P-6 for release of the poppy capsules in his favour claiming that he was the owner thereof Subsequently he sent Ext. P7 notice through a lawyer under S. 80 of the Civil Procedure Code. The goods were not released. pw. 1, the Excise circle Inspector suspected that an offence under S. 9 (a) of the Opium Act had been committed. Samples taken from the consignments were sent for chemical examination. Exts. P8 and P9 are the reports of chemical analysis issued by pw. 6, Chemical Examiner. Ext. P8 stated that the material consisted of incised poppy husks along with "two numbers of unincised Poppy capsules". The sample contained 0. 56 per cent by weight of anhydrous morphine. Ext. P9 is to the effect that the material examined thereunder was incised poppy husks. The sample was found to contain 0. 11 per cent of anhydrous morphine. A complaint was thereafter filed before the Court. The respondent contended that the consignments were not proved to be of poppy capsules, possession of which alone is an offence under S. 9 (a) of the Opium Act. The Chemical Examiner's report only showed that the goods consisted of poppy husks and not poppy capsules. He also denied that he was in possession of the articles consigned. The trial court did not accept the contentions of the respondent and convicted him for offence punishable under S. 9 (a) of the Opium Act and sentenced him to rigorous imprisonment for one month and a fine of Rs. 1000/ -. In default of payment of fine, the respondent was to undergo rigorous imprisonment for one month more An appeal was preferred against the above conviction and sentence. The Additional sessions Judge. Trichur held that in the absence of evidence regarding the ownership of the goods, the respondent could not be held to be in possess on of the article. The court also held that the goods seized do not fall within the definition of 'opium' under S. 3 (1) of the Act. According to the learned judge, poppy capsules alone would fall under the definition. The court also did not act upon the report of the Chemical Examiner or the evidence of P. W. 6 on the ground that it was not P. W. 6 who analysed the sample. In the light of the above reasoning, the court allowed the appeal, set aside the conviction and sentence and acquitted the appellant. The present appeal is filed challenging the order of acquittal.

(2.) S . 3 of the Opium Act defines 'opium'. "unless there be something repugnant in the subject or context "opium" means (i) the capsules of the poppy (Papavar somniferum L.), whether 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 s. 2 of the Dangerous Drugs Act, 1930 (2) of S 4 prohibits possession etc of opium except as provided therein. S. 5, 8 and 13 deal with the rule-making powers of the State Government. S. 9 provides the penalty for illegal possession etc. of opium. In exercise of the powers conferred under the Act, rules have been framed by the Kerala State Government under S. 5 and 13 of the Act in the year 1958.

(3.) EXTS . P8 and P9, the certificates of the Chemical examiner show that the sample sent to him took in incised poppy husk and also unincised poppy capsules. pw 6 would say in his evidence that poppy husks found were broken capsules. They are described as husks because the capsules were dried and broken. Otherwise they are called poppy capsules. He would also say that poppy husks could be called poppy heads also. pw. 6 further stated that the juice had not been extracted from the poppy husks in the sample and that both husks and poppy capsules contained morphine The appellate judge refused to act upon Exts. P8 and P9 and the evidence of pw. 6 on the ground that Pw. 6, the Chemical Examiner did not himself conduct the analysis. It appears that the appellate judge was under the impression that the testimony of pw. 6 could be acted upon only in case he himself did the analysis. The court overlooked the provisions of S. 293 of the Code of Criminal Procedure (Act 2 of 1974 ). Under s. 293 (3), when an expert is summoned it is not incumbent that he himself should appear. Any officer who is working with him conversant with the facts of the case and can satisfactorily depose in court can be deputed on his behalf. pw. 6 is the Chemical Examiner. The samples were examined by his subordinates under his supervision. The tests were conducted under his directions. He had himself verified the results. There is no reason why his evidence should not be acted upon. Mention may be made to the case Mangaldas v. Maharashtra State (1966 SC 128), a case under the Prevention of Food Adulteration Act. The Supreme Court held: "it is not incumbent on the Public Analyst to undertake the analysis himself and it is quite sufficient if he gets it done under bis supervision. " The identical principle applies in the instant case Exts. P8 and P9 and the evidence of pw. 6 lead only to the conclusion that the article seized was opium within the definition of the term in S. 3 (1 ).