MOHAMMAD KAZI Vs. EMPEROR

JUDGEMENT

(1.) We think in this case that the conviction ought not to stand by-reason of the first ground which was raised by the learned Counsel for the petitioners. The charge against the three accused was that they illegally possessed and sold opium, contrary to the provisions of the Opium Act of 1878. It appears that there were three pieces of black substance which weighed something like 2 1/2 seers, it and the prosecution was lodged upon the assumption that the whole of this substance was opium. The case apparently proceeded upon that assumption, and the taking of the evidence was concluded; and my learned brother has drawn my attention to the fact that it was at the end of the case that the accused persons asked that this black substance should be analysed; and, upon analysis being made, the analyst reported that in the lumps, traces of opium were detected but the substance was unfit for use as opium. Then a telegram was received on the following day about which the learned Magistrate had some doubt as to whether it was admissible in evidence or not but, at all events, he did admit it, which telegram said that the lumps contained less than one per cent, of opium. Assuming that the learned Magistrate had the right to accept that telegram as evidence, the matter stands thus: the lamps contained traces of opium and those traces amounted to less than one per cent. Now, can it be said--I lay emphasis upon this part of my judgment--that that evidence supported the charge which the prosecution had made against the accused? The case was based upon evidence to the effect that these accused persons were in possession of something like 2 1/2 seers of opium. In our judgment, such evidence is not sufficient to sustain the charge against the accused. Further than that, supposing we are to look at it from a narrower point of view, can it be said that an accused person is in possession of opium or selling opium when he is presenting a mass which is obviously not opium and which only contains, upon analysis, less than one per cent, or in other words traces of it, and especially when the question whether those traces of opium can be separated from the larger mass is entirely left in doubt. The prosecution have not given any evidence as to whether the traces of opium could be extracted from the mass and used as opium. Inasmuch as in a criminal prosecution the prosecution have to prove their case, which was that the accused was in possession of 2 1/2 seers opium, and it turns out what the 2 1/2 seers were not opium, but simply contained traces of opium and there is we evidence that such traces can be extracted from the larger mass, I think under the circumstances the prosecution fails and the conviction should be set aside. In this view, it is not necessary for us to express any opinion upon the question of law which Mr. Das has raised.

(2.) The fines in respect of this conviction, if they have been paid, will be refunded. Walmsley, J.

(3.) I agree.