STATE Vs. SAT RAM DASS

JUDGEMENT

(1.) THIS is an appeal filed by the State against the judgment of a learned magistrate, 1st Class, Dhuri, acquitting Sat Ram Dass under Section 9 of the opium Act.

(2.) THE story of the prosecution is that on 17-4-1957 at about 6. 10. m. the accused respondent was found in possession of 20 seers of poppy-heads near the way leading to village Kakarwal from railway line Dhuri. He was caught by the investigating officer and two witnesses Jagar Singh and Niranjan Singh, when the poppy-heads were said to have been tied in a cloth which was being carried by the accused in the form of a bundle placed on his head. A constable was sent to Dhuri town to fetch someone who could weigh the substance recovered Bhagat Ram P. W. 2 came and found the weight of the commodity recovered to be 20 seers; it included both broken and unbroken poppy-heads. It is then alleged that about three months later this very bundle which had been sealed at the time of recovery was again opened and poppy husk and poppy-heads found in it, were separately weighed. The learned Magistrate after going through the entire evidence felt that the prosecution case was doubtful and had not been proved against the accused. The substance recovered consisted of bhukki or poppy husk and poppy heads. The learned Magistrate found that possession of poppy husk was not an offence under the law as possession of poppy capsules alone falls within the definition of opium which is punishable under the Opium Act, and that also only if it exceeds in quantity the limit prescribed by law. The learned Magistrate also disagreed with the contention of the prosecution that dodas were the same thing as poppy capsules, but assuming that dodas were the same thing as poppy capsules, he was of the view that poppy capsules are also of two kinds, one from which the juice has been extracted and the other from which it has not been extracted, and each kind of poppy-heads has a different limit of quantity prescribed under the law, exceeding which the possession is declared illegal. In the present case, according to the trial Court, there is absolutely no evidence as to how much quantity of poppy-heads consisted of those from which juice had been extracted and how much from which it had not been extracted. The weight of the entire quantity of poppy-heads was merely given as 20 seers. The evidence on the record, as the learned Magistrate has observed, merely establishes that some bhukki and dodas were recovered from the accused and out of the latter some were broken and some unbroken. With these findings the Court below came to the conclusion that the substance recovered from the accused did not under the law fall within the definition of the word 'opium' and therefore there was no violation of Section 9 of the Opium Act. The trial Court was also doubtful if the accused person could be present at the place from where he was alleged to have been arrested, because he was shown, in the register produced by the station Master, to be on duty.

(3.) ON appeal, Mr. Saluja, counsel for the State, has drawn cur attention to the notification dated 28-1-1957 under Section 5 of the Opium Act reproduced at pages 13 and 14 of the Lahore Law Times of 1957, Part V, according to which possession of excise opium or impregnated poppy-heads up to a certain limit has been exempted from the operation of the Opium Act. It is also stated in this notification that possession of any kind of opium other than 'excise opium' and opium extracted poppy-heads in any quantity is prohibited unless specifically provided in the Punjab Opium Orders. Mr. Saluja has submitted that possession of every kind of opium except excise opium is prohibited and it was so prohibited on 17-4-1957 when the accused was caught. The counsel has also drawn our attention to the later amendment dated 21-3-1958 in the Punjab Opium Orders by which the expression 'poppy-heads' has been defined to mean the capsules of the poppy (Papaver Somniferum L.) whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom and in Order 5 of the Punjab Opium Orders also amendment has been made whereby possession of opium in any quantity by any person, except under and in accordance with the conditions of his vation card granted under the Punjab Onium (Restriction on Oral Consumption) Rules, 1956, or under an appropriate license or permit granted under the Opium Act or the dangerous Drugs Act, has been prohibited. Under this amended order also up to the year I960 any person can without a license have, at any one time, in his possession opium impregnated poppy-heads up to certain limits and possession of any kind of onium other than excise opium and opium-extracted poppy-heads whether or not crushed or powdered in any quantity unless otherwise specifically provided in the Punjab Opium Orders has been prohibited. The counsel has contended that since 1958. however, the provisions prohibiting the possession of popny-heads have been made very stringent and under these provisions the case of the present type will clearly be punishable. But, for the conviction of the accused before us reliance has been placed by Mr. Saluja on The State v. Babu Singh, Criminal Appeal No. 786 of 1957. decided by falshaw and Dulat JJ. , where on 3-7-1957 Babu Singh was found to be in possession of 13/4 seers of poppy-heads from which the juice had been extracted. The learned Sessions Judge had, relying on State v. Sohan Lal, AIR 1956 Punj 159, held that the possession of such poppyr capsules as were found from Babu singh was not an offence under the Opium Act. On appeal by the State, the division Beach distinguishing AIR 1958 Punj 159, allowed the appeal and convicted the accused Babu Singh on the ground that under the rules then in force, possession of poppy-heads from which the juice had not been extracted was not permissible beyond one chhatak. To me the language of the amended Order 21. 5 of the Punjab Opium Orders, 1957, dated 28-1-1957 does not appear to be quite clear and free from ambiguity. The order is in the following terms: