In a prosecution for possession of opium under Section 9(a) of the Opium Act, 1878, the prosecution must prove that the substance recovered from the accused is opium as defined under Section 3 of the Act. This requires chemical analysis of the substance by an expert and cannot be established merely by the superficial observation of the Magistrate.

( 1 ) THIS revision is directed against the judgment and order of the Court of Session, Kistna Division, Masulipatam dated 20th July, I960 in Criminal Appeal No. 75 of 1960 on the file of the said Court, confirming the conviction and sentence of the petitioner passed by the Addl. District Munsif-Magiatrate, VJjayawada in Calendar Case Mo. 326 of J959 on the file of the said Court.

( 2 ) THE petitioner herein was charged before the Second Addl. Munsif-Magistrate, Vijayawada under Section 9 (a) of the Opium Act (1 of 1878) and convicted of that charge and sentenced to four months simple imprisonment and (sic) fine of Rs. 50. 00 and in default to simple imprisonment for (sic) further period of one month.

( 3 ) AGAINST this, he preferred an appeal to the Court of Session, Kistna at Masulipatam. The learned Sesions Judge confirmed the conviction and sentence and dismissed the appeal. Hence the present revision.

( 4 ) IT may be necessary at the outset to briefly notice; the facts, which are fairly simple:

( 5 ) THE case of the prosecution is that the petitioner was seer in Frenchpet, Vijayawada under the Hotel Ratna at 5-30 P. M. on 8-10-1959 coming from the side of the railway station and holding a brown canvas bag in his hand. The Sub-Inspector of Police, Law and Order of the Second Station, Vijayawada, who happened to be there with some of his constables, questioned the petitioner and apparently the letter got confused. Thereupon the suspicions of the Sub-Inspector having been roused, he searched the hand-bag, which was being carried by the petitioner marked in the case as M. O. 1, in the presence of two persons, one or whom is examined in the case as P. W. 1. He found a lump of opium marked in the case as M. O. 11, mapped in oil paper, which was covered in turn with a newspaper. Besides, M. O. 11, there were other articles in the bag, such as, a shirt, a pair of spectacles in a case, a fountain pen, comb and two one rupee notes. The lump was weighed and was found to weigh fifty tolas. Thereupon, the Sub-Inspector of Police arrested the petitioner and seized the articles under a mediators report marked in the case as Ex. P-1. He took the accused to the police station with the property, and registered a case under Section 9 (1) of the Opium Act. He prepared F. I. R. Ex. P-2 and filed the charge-sheet in the case.

( 6 ) THE evidence for the prosecution consisted of the Sub Inspector of Police, P. W. 2 and of one of the mediators, Majji Satyanarayana, P. W. 1.

( 7 ) THE accused pleaded not guilty to the charge and denied the offence. His case is that he is a resident of Kurnool and he had come to Vijayawada from Kurnool on 7-10-1959 and stayed at the Modern Hotel having booked room No. 17 therein at 11 A. M. on 7-10-1959, that he had come to Vijayawada In order to attend his party meeting, and that he also attended the Krishna District Backward Committee Meeting as an invitee on the evening of 8-10-1959 from 4 to 6-30 P. M. that he went back to the Hotel, Modern Cafe at about 7 P. M. when the Sub-Inspector of Police and two or three police constables came and enquired of him as to one Hussainappa, the occupant of room No. 17 in the Modern Cafe along with the petitioner, that on his Informing them that he was not in the room, the Sub-Inspector took him (petitioner) to the police station and showed M. O. 11, the lump, and asked him if it belonged to him, that the petitioner denied the same and thereupon, the Sub Inspector took him into custody and put up this case.

( 8 ) THREE points have been urged by Shrlmathi Sithama-halakshmamma the learned counsel for the petitioner in this revision : Firstly, that there is no proof in the ease to show that M. O. 11 alleged to have been seized from the possession of the petitioner was In fact opium, and that it conformed to the type of opium, the possession whereof is prohibited under Section 4 of the Opium Act. (I of 1878); Secondly, she claimed that there Is no satisfactory proof