Full Judgment
K. Jayachandra Reddy,; G.N. Ray and; N.P. Singh, JJ.
1. Heard learned counsel for the parties.
2. The appellant has been found guilty under Section 9 of the Opium Act and sentenced to two years' rigorous imprisonment and a fine of Rs 1000 in default to undergo six months' RI by the trial court.
3. The appeal filed by him was dismissed by the Sessions Court and a further revision to the High Court was also dismissed. Hence the appeal.
4. The main question that arises for consideration in this case is whether the evidence of the Station House Officer (examined as PW 5) who seized the opium from the accused can be believed when he says that he tasted and examined the same and found the stuff to be opium. Whether such evidence is a sufficient proof of the prosecution case, viz., that what was seized was opium only.
5. It may be mentioned that the sample was sent to the Chemical Examiner for examination of the seized stuff who found the same to be opium. But the learned Judge while deciding the appeal, however, eschewed the report of the Chemical Examiner on the ground, viz., that the sample said to have been sent to him was not identified as the one containing the contraband seized from the accused and for some other reasons. However, the learned Sessions Judge relied on the evidence of the SHO and affirmed the convictions. Before the High Court, it was contended that there was no proof that what was seized was opium and once the Chemical Examiner's report was eschewed, then it is highly dangerous to rely on the SHO and come to the conclusion that what was seized was opium. The High Court, however, in this context referred to a judgment of this Court in Baidyanath Mishra v. State of Orissa1. In that case it was observed-
“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.”
In the instant case, the SHO - examined as PW 5, in his depositions stated that he searched the premises and seized some bags which contained opium and the same was examined and tasted which was ultimately found to be opium. Relying on this evidence and also the observation made by the Supreme Court, the High Court held that the prosecution had proved that it was opium.
6. Learned counsel for the appellant submits that once the Chemical Examiner's report is eschewed, then the evidence of PW 5 - the SHO is not conclusive in the sense that he did not say that he had experience in tasting and smelling opium and thus had gained expertise and in the absence of any detail given by him, it is not safe to rely on a mere ipse dixit of the SHO. We may point out that the High Court also noted this aspect and has rightly held that no cross-examination was held on this aspect. The learned counsel, however, relied on another judgment but that was a case where the substance seized was alcohol. However, in this case, we are satisfied from the facts and circumstances of the case, viz., that the nature of the search, seizure and the evidence of PW 5, the prosecution has proved that it was opium which was seized from the accused. However, we may observe that the authorities would do well by getting the seized article duly examined by the Chemical Examiner to avoid all the difficulties. For the above reasons we see no ground to interfere. Now coming to the sentence, the offence is said to have been committed in the year 1975 and the accused also was in jail for some time. Taking all these circumstances into consideration, while confirming the conviction, we reduce the sentence to six months' RI. Sentence of fine with default clause, is, however, confirmed. Subject to modification of sentence, the appeal is dismissed.