( 1 ) THE main question to be decided in this appeal is whether what was found from the possession of the accused was opium within the meaning of sec. 2 (30) of the Bombay Prohibition Act. According to the above section opium means (a) the capsules of the poppy (Papaver Somniforum L) whether in their original form or cut or crushed or powdered and whether or not the juice has been extracted therefrom; (b) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport; and (c) any mixture with or without neutral materials of any of the above forms of opium but does not include any preparations containing not more than 0. 2 per cent of morphine or a manufactured drug as defined in sec. 2 of the Dangerous Drugs Act 1930 Now according to P. W. 4 Jadavji Trivedi who is Assistant Chemical Examiner at Baroda the sample that was sent to him was opium containing 5. 7% of morphine. He admits in his cross-examination that he had analysed the substance only to find out the percentage of morphine. He is unable to say as to what else the substance contained. In order to show that the substance in question is opium it was necessary for the Chemical Examiner to find out whether it contained any of the forms of opium specified either in clause (a) or clause (b) of sec. 2 (30) of the Act or any mixture with or without neutral materials of any of the forms of opium specified in the above clause (a) or (b) as contemplated by clause (c) of the above section. In the present case however as admitted by the Chemical Examiner he has not ascertained whether the substance in question contained any of the forms of opium or any mixture thereof as contemplated by sec. 2 (30) of the Act. Under these circumstances it is rather difficult to say that the substance in question falls within any of the clauses (a) (b) or (c) of sec. 2 (30) of the Act. My learned Brother D. A. Desai J. has also taken a similar view in Criminal Appeal No. 1009 of 1971 decided on 12-1-1972.

( 2 ) IT is true that the substance contains more than O. 2 percent of morphine but unless it is proved that it also contains any of the forms of opium specified in clauses (a) or (b) or any mixture with or without neutral materials of any of the above forms of opium it cannot be treated as opium within the meaning of sec. 2 (30) of the Act. In this connection it may be pointed out that the definition of opium as contained in sec. 2 (30) of the Act is almost identical with that of that expression as given in sec. 2 (e) of the Dangerous Drugs Act 1930 Now according to sec. 2 (f) of the Dangerous Drugs Act opium derivative includes morphine that is the principal alkodoid of opium having the chemical formula c. 17 H. 19 No. 5 and its salts. Even according to the books on pharmacology morphine is one of the important alkoloids of opium. This shows that merely because a substance contains morphine in high percentage or otherwise it cannot be considered as opium within the meaning of sec. 2 (30) of the Act. Even according to the Dangerous Drugs Act morphine which is an opium derivative is different from opium the definition of which in both the above Acts is identical in material particulars. It can therefore be reasonably inferred that even for the purpose of Prohibition Act opium is different from morphine. The Assistant Chemical Examiner seems to have lost sight of the above position. It may be that if he had analysed the substance further it would have been found out that it also contained some of the forms of opium specified in sec. 2 (30) of the Act. But he analysed the substance only with a view to finding out whether it contained morphine probably under the impression that if morphine were detected from the substance it would be treated as an opium only on that account. Under sec. 66a of the Act however what is made punishable is the import possession etc. of opium as defined in sec. 2 (30)