SHAMJIBHAI DHANJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed by the original accused who has been convicted of an offence punishable under sec. 66-A of the Bombay Prohibition Acts 1949 (which will be hereinafter referred to as 4;The Act) by the City Magistrate 2 Court Ahmedabad in Summary Case No. 879 of 1970 and sentences to suffer six months rigorous imprisonment and to pay a line of Rs. 750/and in default of payment of fine to undergo one months 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 sec. 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 sec. 66-A of the Act. In support of his arguments the Advocate appearing for the appellant (Mr. B. C. Patel) had relied upon the unreported 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 Modis 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 possesion 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 sec. 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-from 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 sec. 2(30) of the Act from the mere find of morphine content in the substance in question exceeding the limit of 0.2 per cent. the Court cannot necessarily conclude that the substance found in possession of the appellant was opium within the meaning of the definition given in sec. 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 referance at an appropriate stage.