(1.) The petitioner was found in possession of six slabs weighing about 60 tolas of Opium on 13th May, 1961. He is prosecuted by the Excise and Prohibition Sub-Inspector, Sompeta, in the Court of the Additional District Munsif-Magistrate,
(2.) Sompeta, for an offence under section 9 (a) of the Opium Act (I of 1878). P-W-3, the Analyst, spoke that the substance so seized was Opium with morphine, but as he did not conduct the quantitative analysis, he was unable to specify the percentage of morphine in the Opium seized. The accused raised the defence that unless the prosecution proves that the Opium contained 0.2 per cent, or more of morphine, he cannot be found guilty under the Opium Act. In view of this, the Munsif-Magistrate passed an order on the memo, filed by the Sub-Inspector of Excise and Prohibition (complainant) that the Opium should be sent again to the Chemical Examiner for further analysis with a view to find the exact percentage of morphine in each item of Opium slab. This order was purported to be made under section 540, Criminal Procedure Code. Against this order the accused preferred this Revision Petition on 1st March, 1962.
(3.) It may be mentioned that though the trial of the case, C.C. No. 49 of 1961, has been stayed by this Court, the second report of the Chemical Examiner dated 2nd April, 1962 was received by the lower Court. That report specified that all the six slabs of Opium contain more than 2 per cent, of morphine.