ALIHUSEN NAJARALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RANE J.

(2.) 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 sec. 2(30) of the Bombay Prohibition 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 sec. 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 sec. 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 sec. 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 sec. 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.