Kanhaiya Lal Vs. State of Rajasthan - Court Judgment

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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
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		'court' => 'Rajasthan',
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		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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S.N. Bhargava, J.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium?

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
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			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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			'respondent' => 'State of Rajasthan',
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		'id' => '757278',
		'acts' => '',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
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			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$url = 'https://sooperkanoon.com/case/amp/757278/kanhaiya-lal-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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The sample was examined and the result of examination is as under:

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
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		'court' => 'Rajasthan',
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		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
	)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
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			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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			'respondent' => 'State of Rajasthan',
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		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
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		'court' => 'Rajasthan',
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		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'counselplain' => '',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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$url = 'https://sooperkanoon.com/case/amp/757278/kanhaiya-lal-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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12. Section 3 of the Opium Act reads as under:

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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'respondent' => 'State of Rajasthan',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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Opium means -

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'counselplain' => '',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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(i) 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;

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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(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

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Code Context
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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
		'acts' => '',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan'
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'id' => '757278',
		'acts' => '',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
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		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
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		'court' => 'Rajasthan',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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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 produce 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.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'counselplain' => '',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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	'Judgement' => array(
		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'respondent' => 'State of Rajasthan',
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$ctype = ' High Court'
$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
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			'appellant' => 'Kanhaiya Lal',
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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
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			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
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		'court' => 'Rajasthan',
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		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
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		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'favorof' => null,
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
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		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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$caseref = 'Phool Kumar v. Delhi Administration<br>'
$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'favorof' => null,
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'appellant' => 'Kanhaiya Lal',
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		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
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		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
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		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
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20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.

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			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
			'caseanalysis' => null,
			'casesref' => 'Phool Kumar v. Delhi Administration;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1989CriLJ1618; 1988(2)WLN285; 1988WLN(UC)302',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '757278',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
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21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | ',
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			'id' => '757278',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
			'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
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			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1988-04-27',
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			'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
			'judgement' => '<p style="text-align: justify;">S.N. Bhargava, J. </p><p style="text-align: justify;">1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p style="text-align: justify;">2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p style="text-align: justify;">Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p style="text-align: justify;">This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p style="text-align: justify;">3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p style="text-align: justify;">4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p style="text-align: justify;">5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p style="text-align: justify;">The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p style="text-align: justify;">The sample was examined and the result of examination is as under:</p><p style="text-align: justify;">On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p style="text-align: justify;">6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p style="text-align: justify;">7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p style="text-align: justify;">8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p style="text-align: justify;">9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p style="text-align: justify;">10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p style="text-align: justify;">11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p style="text-align: justify;">12. Section 3 of the Opium Act reads as under:</p><p style="text-align: justify;">Opium means -</p><p style="text-align: justify;">(i) 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;</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p style="text-align: justify;">Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p style="text-align: justify;">13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p style="text-align: justify;">14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p style="text-align: justify;">15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p style="text-align: justify;">16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p style="text-align: justify;">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 produce 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.</p><p style="text-align: justify;">17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p style="text-align: justify;">On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p style="text-align: justify;">was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p style="text-align: justify;">18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p style="text-align: justify;">19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p style="text-align: justify;">20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p style="text-align: justify;">21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan - Citation 757278 - Court Judgment | '
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		'id' => '757278',
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		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan',
		'casenote' => 'Opium Act - Section 4/9--Report dated 23-6-1979 holding that article contained in packet was opium--Held, it can be considered sufficient.;We answer the question in the affirmative and hold that the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was opium.;Reference Answered In Affirmative - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  State decided on 7-4-1986. 3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was 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. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. 21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt.',
		'caseanalysis' => null,
		'casesref' => 'Phool Kumar v. Delhi Administration;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1988-04-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.N. Bhargava and; G.K. Sharma, JJ.',
		'judgement' => '<p>S.N. Bhargava, J. </p><p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.</p><p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---</p><p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? </p><p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.</p><p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.</p><p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.</p><p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:</p><p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. </p><p>The sample was examined and the result of examination is as under:</p><p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. </p><p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.</p><p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.</p><p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.</p><p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.</p><p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.</p><p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.</p><p>12. Section 3 of the Opium Act reads as under:</p><p>Opium means -</p><p>(i) 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;</p><p>(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</p><p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.</p><p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.</p><p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.</p><p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.</p><p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,</p><p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:</p><p>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 produce 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.</p><p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:</p><p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. </p><p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.</p><p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.</p><p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.</p><p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.</p><p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p></p><p>',
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$content = array(
	(int) 0 => '<p>S.N. Bhargava, J. ',
	(int) 1 => '<p>1. This is a criminal revision petition against the judgment of learned Additional Sessions Judge No. 2, Kota, dismissing the appeal against the conviction and sentence passed by Judicial Magistrate (Railways), Kota, convicting the appellant Under Section 4/9 of the Opium Act for a period of 4 months and Rs. 200/- fine, in default of payment of fine, one month's R.I.',
	(int) 2 => '<p>2. This revision petition came up for arguments before the learned single Judge, who has referred this revision to larger bench to decide the following question : ---',
	(int) 3 => '<p>Whether the report dated 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium? ',
	(int) 4 => '<p>This question has been referred to us because there is conflict of views in the two judgments of this Court in Mana Ram v. State 1981 Raj LW 583 : 1982 Cri LJ 696 and S.B. Criminal Rev. No. 24/80 Bajrang Lal v. State decided on 7-4-1986.',
	(int) 5 => '<p>3. We had issued a general notice to all the Advocates to appear and address the Court, if they so liked and enlighten this Court on the above question of law.',
	(int) 6 => '<p>4. Shri S.R. Bajwa, Advocate, has come forward and made his submissions.',
	(int) 7 => '<p>5. Ram Singh and Jagdish Prasad, Constables, apprehended the petitioner Kanhaiya Lal, with a bag in his hand, on 4-6-1979 at about 11.20 P.M., and on search, 800 Grams of opium was found in that bag; out of which, sample was taken and sent to the Forensic Science Laboratory, Jaipur, for report who gave report (Ex.P.6) wherein the description of Article has been mentioned as under:',
	(int) 8 => '<p>The semi-solid, sticky, dark-brown coloured substance wrapped in polythene paper, packed in Cavander's Cigarettes' case weighed 30 gms. along with the wrapper. ',
	(int) 9 => '<p>The sample was examined and the result of examination is as under:',
	(int) 10 => '<p>On chemical examination the sample contained in the packet was found to be of Opium having 2.2 9% (Two point two nine percent) Morphine. ',
	(int) 11 => '<p>6. On the basis of aforesaid report (Ex.P.6), the Judicial Magistrate, held the petitioner guilty Under Section 4/9 of the Opium Act, and convicted him, as aforesaid, On appeal, learned Additional Sessions Judge also confirmed the conviction and sentence passed by the Judicial Magistrate, Hence, the revision petition was filed.',
	(int) 12 => '<p>7. Learned Counsel for the petitioner very vehemently submitted that the opinion given by the State Forensic Science Laboratory (Ex.P.6) is not sufficient to hold that it was opium and in this connection has placed reliance on Bhairulal v. State 1956 Raj LW 413 : 1957 Cri LJ 237 wherein it has been held that it is the duty of the prosecution to send the article in question to the Chemical Examiner for chemical examination because without it, it cannot be said as to how much percentage of the substance is there, which would make its possession culpable, in view of the definition given Under Section 3 of the Opium Act, and Section 2 of the Dangerous Drugs Act, 1930, and the prosecution must prove whether the substance came under the first or second or third category given in the definition.',
	(int) 13 => '<p>8. He has also brought to our notice a judgment of Gujarat High Court in Alihusen v. State of Gujarat 1974 Cri LJ 524, wherein their Lordships have held that it is not sufficient to prove that it was opium as defined in Section 2(30). It must be shown that the substance contained any of the forms of opium specified in Clause (a), or Clause (b) or Clause (c) of the definition. This authority had been relied by Punjab and Harayana High Court in Boota Singh v. State of Punjab 1980 Cri LJ 336 wherein the Chemical Examiner only mentioned in his report that the substance seized contained Morphine but did not state in his report that the substance also belonged to any of the categories described in three clauses of Section 3 giving the definition, and hence, the accused could not be convicted Under Section 9.',
	(int) 14 => '<p>9. He has also placed reliance on a decision of this Court in S.B. Criminal Revn. Petn. No. 24/80 Bajrang Lal v. State of Rajasthan decided on 7-2-86 or 7-4-86...Text in Omitted Ed. wherein the learned single Judge, relying on Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra), held that the prosecution in that case failed to prove that the article recovered from the possession of the accused was opium. It was further observed that mere writing in the report that the sample was found to be opium, its Morphine contents being 6. 9 6%, is not sufficient to prove that the sample was of opium.',
	(int) 15 => '<p>10. On the other hand, learned Public Prosecutor has placed reliance on Anaram v. State of Rajasthan 1977 Raj LW 82 wherein learned single Judge, relying on an earlier decision of this Court in State v. Sukhram Baidyanath Mishra 1976 Cr LR (Raj) 2371 and a Supreme Court decision in Baidyanath Mishra v. State of Orrisa 1967 SCD 1165, held that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneously coagulated juice of such capsules of poppy and has not been submitted to any manipulations, no chemical examination is necessary.',
	(int) 16 => '<p>11. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments cited before us.',
	(int) 17 => '<p>12. Section 3 of the Opium Act reads as under:',
	(int) 18 => '<p>Opium means -',
	(int) 19 => '<p>(i) 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;',
	(int) 20 => '<p>(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',
	(int) 21 => '<p>(iii) any mixture, with or without natural materials of any of the above forms of Opium, but does not include any preparation containing not more than 0.2 percent of Morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.',
	(int) 22 => '<p>Opium has also been defined in Section 2(e) of the Dangerous Drugs Act, 1930 which is also in the same terms.',
	(int) 23 => '<p>13. Section 293, Cr. P.C. provides that the report of the State Scientific Experts mentioned in Sub-section (4) is admissible and it is not necessary to examine the Expert as a witness. Supreme Court also in H.P. Administration v. Om Prakash : 1972CriLJ606 observed that as long as the report of the expert shows that the opinion is based on observations which lead to a conclusion, that opinion can be accepted and there is no necessity of examination of the person making report. Supreme Court has again further observed in Phool Kumar v. Delhi Administration : [1975]3SCR917 that it is for the accused to file an application for summoning and examining the expert, if he wants to challenge , the report and the Court can summon the expert if the accused submits an application. If that is not done, the grievance of the accused that the report of the expert is being used without his examination in court, is of no avail.',
	(int) 24 => '<p>14. In view of these decisions of the Supreme Court, in the present case, the report (Ex.P.6) cannot be held to be inadmissible merely because the expert has not been examined as the accused never required the Court to summon the expert in evidence and this point cannot be agitated in revision.',
	(int) 25 => '<p>15. The only controversy that remains to be examined is as to whether the report (Ex.P.6) should be specific as to under which category specified under the Act, the substance falls,',
	(int) 26 => '<p>16. Observations in Bhairu Lal's case (1957 Cri LJ 237) (Raj) (supra) are of no avail because in that case, the substance was never sent for chemical examination and the learned trial court has placed reliance only on oral testimony of Devi Singh, Supreme Court in Baidyanath Mishra (1967 SCD 1167) (Supra) observed as under:',
	(int) 27 => '<p>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 produce 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.',
	(int) 28 => '<p>17. In Ana Ram's case (1977 Raj LW 82) (supra) the substance was sent for chemical examination and the result of the examination was that it was opium and it had 5.7 5% Morphine, and the learned single Judge in that case, relying on Biradhnath Mishra's case (supra) holding that the analysis report was admissible, found the accused guilty Under Section 4/9 of the Act. So also, in Mana Ram's case (1982 Cri LJ 696) (Raj) (supra), another single Judge, relying on Birdanath Misra's case (supra), held that report of the Chemical Examiner, which runs as follows:',
	(int) 29 => '<p>On chemical examination the samples contained in the packets marked 1 and 2 were found to be of opium having 9.3 5% (nine point three five percent) and 7.4 3% (Seven point four three percent) Morphine respectively. ',
	(int) 30 => '<p>was sufficient to hold the petitioner guilty Under Section 9 of the Opium Act.',
	(int) 31 => '<p>18. The case of Bhairulal(1957 Cri LJ 237) (Raj) (supra) is quite distinguishable as in that case, conviction was based only on the evidence of Devi Singh who said that from the smell, the substance was opium. He did not say as to whether the article in question came in which category of the definition of 'opium', and the substance was not sent for chemical examination. In the present case, the description of the article has been given as being semi-solid, sticky, dark-brown coloured substance, and after chemical examination, the sample was found to be of opium and there was 2.2 9% morphine. The Chemical Examiner's report has nowhere said that it is on account of morphine percentage being more than 0.2% that he has given his opinion that the sample was opium. The description of the substance mentioned in the report is quite indicative, and therefore, to our mind, when the Chemical Examiner says that a particular sample sent to him for analysis, was opium, and further mentions that it contained 2.2 9% Morphine, there is no difficulty in coming to the conclusion that the substance was opium within the meaning of Section 3 of the Act, Merely because the report does not say as to under which of the categories of the definition of opium, the sample falls, it cannot lead to an inference that the substance is not opium, and it cannot be said that the prosecution has failed to prove that the substance recovered was opium. With due respects, we are not in agreement with the observations made either in Alihusen (1974 Cri LJ 524) (Guj) or Boota Singh's cases (1980 Cri LJ 336) (Punj & Hry) (supra) because in both these judgments the learned Judges have not kept in mind the weighty observations of the Supreme Court in Baidynath Misra's case (1967 SCD 1165) (supra) where their Lordships very emphatically have stated that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance in a very strong and characteristic scent. It is possible for people to identify opium without having to subject the produce to a chemical analysis. These observations of the Supreme Court seem to be with regard to the oral testimony of persons who handle opium or deal in opium. In the present case, we have opinion of the Chemical Examiner/Analyst where he has given a positive opinion that the substance was opium, and further mentioned that it contained 2.2 9% Morphine, which further strengthens and gives the basis of their opinion. The report does not say that because the substance contained 2.2 9% morphine, the Chemical Examiner had taken it to be opium. The description of the article given in the report read with the result of examination is quite sufficient to prove that the substance recovered was opium, and to our mind, there is no doubt in this regard. Moreover, the accused petitioner had not taken this point in the trial court, if he was really serious about this point, and if he would have raised this point specifically, and made an application to examine the Chemical Examiner in Court, the prosecution would have supplemented its evidence by producing the Chemical Examiner who would have been cross-examined by the accused petitioner. The accused petitioner having not done so in the trial court, he has no right to challenge the finding in revision.',
	(int) 32 => '<p>19. In the result, we answer the question in the affirmative and hold that the report dt. 23rd June, 1979 can be considered sufficient to hold that the article contained in the packet was Opium.',
	(int) 33 => '<p>20. In this view of the matter, the revision petition has no force, and the same is dismissed. The judgment of the trial court convicting and sentencing the accused petitioner Under Section 9(A) of the Opium Act is affirmed. The accused petitioner Kanhaiya Lal is on bail. He should be immediately arrested to serve the sentence.',
	(int) 34 => '<p>21. Before parting with the case, we shall like to mention that a copy of this judgment be sent to the Home Commissioner, Govt. of Rajasthan, Jaipur and Director, State Forensic Science Laboratory, Jaipur, to issue directions to the concerned authorities that while submitting their report, they should keep in mind the definition of 'Opium' given in the Opium Act, to avoid any future controversy in this regard.<p>',
	(int) 35 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 35
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