Baidyanath Mishra and Another vs The State of Orissa

M. Hidaytullah, J.—In this appeal by special leave two brothers who were holders of licence under the Bihar and Orissa Act, 1915 and the Opium Act, 1878 were prosecuted for contravention of certain provisions of these Acts. Of them Baidyanath Mishra was convicted u/s 9(a) of the Opium Act read with Section 3 of the Opium Laws Amendment Act, 1957, and u/s 47(a) of the Bihar and Orissa Act. He was sentenced in the aggregate to imprisonment for 8 months and to a fine of Rs. 1,000. The other Appellant was also convicted of these two offences but the High Court set aside his conviction under the Bihar and Orissa Act maintaining his conviction u/s 9(a) of the Opium Act. The High Court has imposed a reduced sentence of four months rigorous imprisonment on him u/s 9(a) of the Opium Act and has set aside the sentence of fine of Rs. 500 imposed earlier on him.

The facts of the Case are simple. On receipt of information that these Appellants were illicitly dealing in Opium, Ganja and Bhang, the Excise Sub-Inspector (P.W. 1) raided their house at Mouza Birapurusottampur. From the house and the neighbouring garden the Excise Police recovered vast quantities of what they described as non-duty paid Bhang and Ganja and 3 Srs. and 13 Chhatanks of opium. After proof of seizure the Court of First Instance convicted the Appellants. Their appeal to the Sessions Judge failed and their revision application in the High Court was dismissed with the modifications already noted above. As this is the fourth Court in which the Appellants are raising the question of the validity of their conviction their arguments were necessarily confined to points of law only and Mr. S.C. Agarwala on behalf of the Appellants has raised three questions and they are:

(1) That there is no proof in the case that the opium seized was opium as defined in the Opium Act;

(2) that it has not been proved that the Ganja and Bhang seized was non-duty paid Ganja and Bhang or that there was any breach of the conditions of the licence which the Appellants admittedly held; and

(3) that although the Appellants had asked for permission to lead additional evidence in the Court of Sessions their application remained undisposed of and their conviction was maintained without affording them the opportunity they had asked for.

We shall take up these points seriatem.

The Opium Act defines opium as follows:

"Opium means:

(i) the capsules of the poppy [Papaver somniforum (L) whether in their original form or cut, crushed, powdered, and whether or not juice has been extracted therefrom];

(ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and

(iii) any mixture, with or without neutral materials, of any of the above forms of opium,

but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930 (2 of 1930)

It was contended that since opium is of three kinds it was necessary for some one to have come forward to depose to which category the opium actually seized belonged and further whether it was opium at all according to this definition. Mr. Agarwala also contends that it was necessary to subject the seized opium to a chemical analysis to find out whether it contained more than 0.2 per cent morphine as stated in the latter part of the definition. In our opinion this contention cannot be allowed to prevail. To begin with, the question of 0.2 per cent of morphine docs not arise in connection with the 2nd clause of the definition to which this opium obviously belonged. It refers to a preparation which means a mixture with or without neutral materials containing any other two forms of opium. Since evidence shows that this was opium and not a mixture there was no need for analysis. The argument, however, whether evidence of a more cogent character was needed to establish that the seized article was opium of the category mentioned in the 2nd clause of the definition needs some examination. The prosecution in the case produced three witnesses who spoke to the seizure of opium weighing 3 Seers and 13 Chhatanks in different parcels and in different parts of the house and the garden. No question was put to them to elicit why they said that the article seized was opium. The Appellants now contend on the authority of certain rulings to which reference will be made presently that the article cannot be accepted to be opium without proof from a person who can swear to it accurately and with knowledge. Mr. Agarwala relies upon two cases reported in Bhairulal and Others Vs. The State, and In Re: Ramapuram Ayyanna, , in which it has been held that some proof of the nature of the article, seized as opium, has to be given, and the Court cannot reach the necessary conclusion without positive testimony before it. As against this Dr. V.D. Mahajan who appeared for the State, drew our attention to three cases in which a contrary view has been expressed. They are reported in The State Vs. Kaptan Singh, 118, State of Madhya Pradesh Vs. Kanhaiyalal Bhuwanilal, and State of Madhva Pradesh v. Nanda Dhanna Teli and Ors. 1964 (I) Cri. L.J. 453. In these cases it was held that where an Excise Officer comes and swears that the seized article is opium the Court does not go wrong in accepting that evidence and in the case from Allahabad it was held that opium is such a characteristic substance that a Court may on its own knowledge decide that the article is opium.

It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary. Of course, an analysis will always be necessary if there is a mixture and the quantity of morphine contained in the mixture has to be established for the purpose of definition in the present case the amount of opium was not small. It was 3 Seers 13 Chhatanks in weight and the Excise Sub-Inspector deposed that it was opium. Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the Appellants, who themselves were licensed vendors of opium, had the slightest doubt about the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the Court that the substance be analysed to determine whether it was opium or not. In fact, they denied that the opium was seized from them and later asserted that the house in which it was seized did not belong to them. At no stage did they suggest that it was not opium at all which would have been an ideal defence, if it was true. It appears to us that such an argument raised for the first time before this Court cannot be entertained and we cannot say that in law a Court cannot reach the conclusion that a particular object is opium without having to get the article analysed. There are numerous articles such as turpentine, kerosene, petrol etc., which a Court may identify without having to go to the trouble of subjecting them to chemical analysis. Opium happens to be one such substance and when, as in this case, the Excise Sub-Inspector, two independent search witnesses, the Court and the accused themselves who were licensed vendors of opium did not moot the question whether it was opium or not, we think it is too late to entertain such a plea. We do not therefore accept this argument.

The next argument is that it has not been established that the Ganja and Bhang seized were non-duty paid Ganja and Bhang as the charge says. The Bihar and Orissa Excise Act makes the possession of an intoxicant unless it is under a licence, an offence if it be in contravention of the Act or of any rule, notification, order made, issued or given or licence, permit or pasts granted under the Act. There is no doubt that the Appellants were in possession of vast quantities of Bhang and lanja and the question is whether this was in contravention of the licence or permit granted to them under the Act. The Excise Sub Inspector stated that they were licensed dealers for two villages by name Teishpur and Jeswapur for the years 1961-1962. Their licence commenced on 1-4-1961 and was to expire on 31-3-1962. The raid on their house took place at Birapurusottampur on 17-4--1961. Now under the terms of their licence, which was in standard form of which a copy was produced in the shape of the licence of the previous holder of the shop. It is clear that the licensee could not possess Ganja and Bhang at any place other than his shop. u/s 19(3) of the Bihar and Orissa Excise Act it is provided that a licensed vendor shall not have in his possession at any place other than that authorised by his licence any quantity of any intoxicant in excess of such quantity as the Board has u/s 5 declared to be the limit for retail sale except under a permit granted by the Collector in that behalf. It appears to us that the holding of such vast quantities of Bhang and Ganja at a place other than where the shop was located itself an offence but the question is whether this Bhang and Ganja was non-duty paid as the charge stated. Section 48 of the Act allows the raising of a presumption which the person in possession must repel. Here the Appellants have to thank themselves because they made no effort to show that this Bhang and Ganja which had been seized from them was, in fact, duty paid. They did not even produce their licence. It must be remembered that these licensees commenced their business only on 1st of April, 1961 and the raid took place within 16 days of the commencement of their licence. Two receipts have been produced for payment of licence fees for two months in advance and the amounts are so small that they could not possibly have covered the vast stock which they had in their house running into maunds. It is thus obvious that this Ganja and Bhang was contraband and had not borne the duty which would have been proved if it was paid by the Appellants. We do not think, therefore, that the charge made against them is fully substantiated and another charge against them could have been framed for keeping Ganja and Bhang at a place other than that authorised by their licence.

As to the last point it is true that the Appellants did make an application for examination of additional evidence which the Judge marked for disposal on a particular date. It seems that every body concerned with the case lost sight of that application and the Appellants did not themselves care to bring it to the notice of the Court before the case was disposed of. In the circumstances it is clear that they were not quite serious about pressing this application and must suffer for their own laches and for contributing for the non-disposal of the application.

The appeal has no force. It fails and is dismissed.