Full Judgment
S.B. Sen, J.
1. This is a revision against conviction of the applicant under S. 9(a) and (b) of the Opium Act.
2. The applicant Poona was found to have been carrying on his cycle carrier a Tin box which was found to contain 14 seers of opium in one paper packet. On the cycle the name of one Ramgopal was engraved. The applicant ana Ramgopal Were prosecuted but Ramgopal has been acquitted, whereas the applicant convicted as stated above.
3. The applicant first of all challenged the finding about possession, at least of conscious possession of the article. He suggested that while he was going he was asked to carry the article, the contents of which he did not Know. Such a story can hardly be believed. The packet contained 14 seers of contraband opium, and there is no evidence that somebody at some time asked the applicant to carry away this article. This story of the applicant has therefore been rightly rejected.
4. The next point however is important, The contraband article has been held to be opium. The applicant has challenged this finding. His contention is that the prosecution relied on either inadmissible evidence or no evidence at all. According to him the testimony of the Excise Officers who have given their opinion from colour, taste and smell cannot form the basis of conviction. The article should have been subjected to chemical test. The Excise Officers are not only interested but their evidence amounts to an opinion from non-experts. The question therefore is whether it was necessary for the Police to send for the opinion of the Chemical Analyser.
5. Reliance was placed by the learned Counsel for the applicant on a decision given by Shri Razzaque J. in Criminal (Revision No. 269 of 1961, Kalian v. State, in that case Razzaqua J. did not accept the opinion of non-experts based an smell as sufficient. He was of the view that it was necessary to get the article chemically examined in order to find out whether the article contained the required percentage of morphine or a manufactured drug.
6. An opposite view has however been held in another case of this Court which is also unreported, Criminal Revision No. 41 of 1958 Jiwanlal v. State decided by Dixit J. (as the then was. In that case the learned Judges was of the opinion that 'Opium is. so well known in India that an expert is not necessary to say whether a certain article is or is not opium.
7. Dixit J. seems to have relied on a decision of the Allahabad High Court. In 0043/1952 : AIR1952 All118 , The State v. Kaptan Singh in which their Lordships have held:
Opium in the form of coagulated juice of poppy is so well known in this country being widely used for medicinal and other purposes that any one can identify it and it is unnecessary to call in an expert to establish its identity. if an Excise Inspector says that certain article is crude opium his testimony cannot be looked upon as merely am opinion of an expert and is entitled to weight as evidence even if no reasons are given for the opinion.
8. The learned Counsel for the applicant referred to a case reported in : AIR 1960 SC483 , Prithvisingnji v. State of Bombay in support of his contention. But I do not think that case decides the question. The case too was of contraband liquor. In that case their Lordships have observed:
The evidence of the District Inspector of Prohibition and Excise, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done sufficiently and that the test by smell cannot give the percentage of alcohol. There is therefore no clear proof that the liquid contained in this bottle found in the attache case was in the first place liquor, that it was an intoxicant within the meaning of the Act. it is to be remembered that at least up to Sirohi Road Station possession and consumption of intoxicating liquor was no offence. if the bottle smelt of alcohol when it was uncorked at Abu Road Station that would not necessarily prove that the liquid contained therein was in fact any intoxicant. Even if water or any liquid other than liquor has been poured into a battle which had recently contained liquor the smell of alcohol would still be there. it seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence.
9. I am of the view that it depends on the circumstances of each case as to whether test by smell test or colour would be sufficient. I do not say that opium is such a common article that any one can identify it, nor do I how the view that before an article can be identified as opium it is necessary to test the same chemically. In my opinion it depends on the circumstances of each case. if there are witnesses who are experienced and have occasion to deal with the same often testify that the article is opium, Courts may accept the evidence. That is what has happened in the present case.
10. In the instant case we find that the witness the Asst. Commr. of Excise Mr. Sahu, a man of experience, has testified that he came to the conclusion that the article was opium from three factors viz. smell, colour and taste. Similar is also the opinion of other witnesses Amarsingh S.I. P.W. 1 and Maroti P. W. 2. If the Courts do not find any ground to disbelieve them otherwise, that should be sufficient. Chemical test is no doubt infallible and it would be better if the Excise Department get it done before a prosecution is launched to avoid any criticism. 0.2 per cent morphine or a manufactured drug for any preparation is so small a quantity that it would neither give colour, taste or smell of crude opium so as to mislead experienced persons.
11. I do not agree with the learned Counsel for We applicant that Razzaque J. is of the view that in every case to identify opium: chemical test would be essential. That was necessary in that particular case. The facts of that case indicate that samples were taken for chemical examination but were not ultimately sent. The opinion of the witnesses was based on smell and it was not known whether they had any experience.
12. I do not see anything illegal or improper in accepting the testimony of the excise officers P.W. 1 Amar singh and P.W. 3 Sahu who have been handling opium for the period of their long service and have given their opinion by taste, colour and smell. The quantity of opium was very large. There was no question of any other preparation which (sic) the article was a medicinal or other preparation containing no morphine or less than 0. 2 p.c. morphine.
13. I therefore do not see any reason to interfere in this revision petition which is dismissed.