STATE OF MADHYA PRADESH Vs. KANHAIYALAL BHUWANILAL

JUDGEMENT

(1.) THIS is an appeal under Section 417 Criminal Procedure Code preferred by the state and is directed against the order of acquittal recorded by the First Class magistrate Ratlam in Criminal Case No. 235 of 1961. The respondent was prosecuted under Section 9 (a) of the Opium Act for possession of contraband opium.

(2.) THE prosecution case against him is that on receipt of information that contraband opium was in the possession of the respondent Station Officer badansingh of Namli decided to lay a trap. He along with constables Kararnatkhan and Rai-singh and Panchas Onkarlal and Nandu reached the village Bhadwasa at 8 p. M. on 30-7-1961. Constable Raisingh was sent to the house of one Shakoor where the respondent had agreed to bring opium for sale, S. I. P. Badansingh, constable Karamatkhan and the Panchas kept themselves in hiding behind the house in front of Shakoor's house. Raisingh, who was dressed in plain clothes waited at the house of Shakoor and shakoor informed Kanhaiyalal of the arrival of the purchaser spoken of by him earlier to him. Respondent Kanhaiyalal thereupon brought from his house contraband opium wrapped in a piece of cloth. Kanhayalal, on Shakoor's insistence gave the opium to Raisingh who smelt it and was satisfied that it was raw opium. Raisingh then put it on the ground and gave signal with a torch light which he carried. This brought the Panchas and the Station Officer and Karamatkhan on the scene. The contraband opium was seized and weighed. It was found to weigh a seer and a quarter. However it was not subjected to chemical analysis panchanama of seizure and weighment was made On these facts the respondent was prosecuted.

(3.) THE learned Magistrate found 'that the incriminating Article 1 was seized from the possession of the accused person' (i. e. , the respondent ). But he held relying upon the decision in Criminal' Revn. No. 269 of 1961 Kalian v. State of Madhya pradesh D/~ 22-11-1961 (MP), that as the prosecution had failed to prove the percentage of morphine by chemical analysis as required by Section 3 of the fndian Opium Act it could not be said that the alleged article was opium. He therefore acquitted the accused.