- (1.) THIS is an application for revision by the accused Ramlal who was convicted by the learned City Magistrate, Jaipur, under sec. 8 of the Rajasthan Opium Ordinance, No. l of 1950, and sentenced to one month's rigorous imprisonment and a fine of Rs. 200/ -. His appeal to the learned Sessions Judge Jaipur City has been dismissed.
(2.) THE case against him was that on 7th of January, 1951 at about 8 or 8-30 P. M. the accused was found in possession of 1st. 2 Chhks. of opium when a search was made. THE accused Ramlal admitted that opium was found in his possession but as it was tied up in the cloth he did not know that it was opium. He stated that one other person who had accompanied him from Amber had left the bundle containing the opium with him saying that he was bringing some other luggage of his from his house. Ultimately, the accused pleaded guilty and he was convicted and sentenced as above. It has been argued by Mr. R. C. Sharma on behalf of the applicant than on the date the offence is said to have been committed, Rajasthan Opium Ordinance (hereinafter to be referred to as the Opium Ordinance)has not been in force and had been repealed by Opium, Revenue Laws Extention of Application. Act, 1950. The accused could not, therefore, be convicted under the Ordinance. It was further argued that the prosecution failed to prove that the commodity in respect of which accused was charged was opium. It was argued that although the accused pleaded guilty at a later, stage of the trial yet his plea of guilt was subject to the statement that he had made under sec. 342 of the Criminal Procedure Code. Moreover, it was argued that, when the prosecution had failed to prove that the commodity in question was opium as defined in the Opium Ordinance or Opium Act the mere fact that the accused pleaded guilty would not make him liable for conviction. It was further argued that although the lower appellate court might not have been able to interfere in appeal by virtue of sec. 412 of the Criminal Procedure Code, yet the powers of this Court in revision are wider and even though the accused pleaded guilty, this Court can see whether the offence was made out against him or not. On behalf of the State, it was argued by Mr. C B. Bhargava, Deputy Government Advocate, that although the Opium Ordinance had been repealed before the date of occurrence, yet sec. 8 a) of the Opium Ordinance was exactly the same as sec. 9 (a) of the Opium Act and, therefore, the accused was guilty of an offence under sec. 9 (a) of the Opium Act if not under sec. 8 (a) of the Opium Ordinance. The act of the accused was therefore, in any case culpable and his conviction cannot, therefore, be set aside simply on the ground that it has been recorded under a section of the Opium Ordinance which had been repealed. As regards the argument that it was not proved that the commodity in question was opium as defined in the Opium Act or Opium Ordinance, it was argued that two witnesses for the prosecution namely Mohanlal P. W. 1 and Jai Ram P. W. 4 have clearly stated that the opium which was recovered from the possession of the accused by opium the possession of which was illegal. It was argued that Mohanlal P. W. 1 has also stated that the commodity in question had been made up of opium juice and it was (Kachhi Tikiya) which showed that it was spontaneously coagulated juice of capsules of poppy and had not been submitted to any manipulations other than those necessary for packing and transport. It was argued that the opium in question came under clause (1) and (2) of sec. 3 of the Opium Ordinance and sec. 3 (1) of the Opium Act of 1878. I have considered the arguments of both the learned counsel. So far as the first question is concerned, there is no doubt that the Opium Ordinance had been repealed before the date of occurence. However, the Opium Act of 1878 was in force on the said date and sec. 9 (a) of the Opium Act is in the same words as sec. 8 (a) of the Opium Ordinance. According to Opium Act also therefore, the Act of the accused was an offence and the sentence which has been given does not exceed the sentence with could be awarded under sec. 9 (a) of the Act. The mistake made by the learned Magistrate therefore, is immaterial and only on that ground conviction cannot bo set aside unless prejudice was caused to the accused. In the case of King Emperor vs. Sarju Prasad (l), the Deputy Magistrate overlooked the fact that the Act 1 of 1904 had been replaced by the Poisons Act of 1919 and recorded a conviction under the Act of 1940. It was held that the error was not vital and did not vitiate the conviction recorded by the Dy. Magistrate In the case of Raghoonath Dass vs. Chuckerdhun Raut (2), the Magistrate convicted the accused under certain repealed sections of law, the High Court refused to set aside the conviction, having regard to sec. 426, Code of Criminal Procedure, as the conviction and sentence might have been passed under sections of the Penal Code and no substantial injury had been done to the accused. In the present case it has not been shown what prejudice has been caused to the accused by convicting him under a repealed law instead of convicting him under the existing law which made the act of the accused as much culpable as was made by the repealed Ordinance. I am therefore, not inclined to interfere with the conviction on this ground. As regards the second question it is no doubt true that the commodity in question was not chemically analysed by any expert. However, the Excise Inspector who has to deal with opium in his official capacity clearly stated that the commodity in question was contraband opium (Najayaz Afim) and that it was constituted by the juice of poppy capsules and was in the shape of Kachhi Tikiya which means that it was not submitted to any manipulation other than those necessary for packing and transport, This witness was not cross-examined by the accused on this point. Another witness, Jai Ram, also stated that the commodity seized from the accused was contraband opium (Najayaz Afim) This witness too was not cross examined. The accused himself admitted that the commodity which was seized form him was contraband opium (Najayaj Afim ). Under these circumstances I do not think that the accused was wrongly convicted for the possession of opium simply because the opium was not submitted for examination. Mr. R. C. Sharma made a last argument that in any case if the conviction is maintained, the sentence may be reduced. Considering all the circumstances, I think that the ends of justice would be met if the sentence of imprisonment is set aside, and the sentence of fine alone is maintained. The application for revision is party allowed, the conviction is mantained, but the sentence is reduced to that of fine of Rs 200/-only. The sentence of imprisonment is set aside. The accused is on bail and need not surrender to it. . ;