The principle that benefit of doubt can be given to an accused person only in that case in which the reports submitted by two Chemical Examiners are discrepant about a substance contained in homogeneous solution does not apply to the case of mixture, the components of which are not uniformly mixed up.

1. This is an appeal by special leave against the order of acquittal dated March 28, 1972, passed by the learned Chief Judicial Magistrate, Ferozepore.

2. On May 21, 1970, Police Inspector Sudarshan Singh, Sub-Inspector Chaman Lal, Assistant Sub-Inspector Pyare Lal, Shri Bhatnagar, Assistant Superintendent of Police (under training) and some other Constables were on patrol duty. When the party reached near the cremation ground beyond Basti Bhatian, the respondent was seen coming from the opposite direction. On seeing the police, he tried to slip away. He was, however, apprehended on suspicion and on his personal search he was found carrying a packet, in a piece of cloth, containing 1300 grams of opium wrapped in glazed paper. A sample of opium was taken out and sealed in a parcel. The remaining opium was also separately sealed into another parcel. Both these parcels were taken into possession vide memo. Exhibit P-A. after the completion of the investigation, the respondent was sent up for trial before the learned Chief Judicial Magistrate, Ferozepore. The prosecution examined Inspector Sudarshan Singh. P.W. 3, Sub-Inspector Chaman Lal P.W. 1 and Assistant Sub-Inspector Pyare Lal P.W. 2. In the course of the trial, the respondent made an application that a sample of the alleged opium be got analysed at his expense. This request was acceded to, another sample was drawn out and sent to the Asstt. Chemical Examiner, Punjab, Chandigarh, for analysis. About this sample, it was reported by him that it contained 12% morphine. The earlier sample which had been sent to the Assistant Chemical Examiner, Punjab, Amritsar, was reported to be containing 3% morphine. Upon this, the learned trial Magistrate summoned Dr. S.K. Bhatnagar, Assistant Chemical Examiner, Punjab, Amritsar, and Dr. Har Gobind Singh Asstt. Chemical Examiner, Punjab Chandigarh, as Court witnesses. After going through the entire evidence led in the case, the learned trial Magistrate accepted the testimony of Sub-Inspector Chaman Lal P.W. 1, Assistant Sub-Inspector Pyare Lal P.W. 2 and Inspector Sudarshan Singh P.W. 3 and held that the respondent was in fact found to be in possession of illicit opium as alleged by the prosecution, but on the basis of the disparity in the two reports of the Chemical Examiners about the morphine content, he acquitted the respondent. In doing so, he relied upon Satnam Singh V/s. State, 1967 Cur LJ 411 (Punj) in which a similar view had been taken.

3. On behalf of the State of Punjab, the correctness of the view taken by the learned Judge of this Court in Satnam Singhs case 1967 Cur LJ 411 (Punj) (supra) has been challenged. It is submitted that benefit of doubt can be given to an accused person only in that case in which the reports submitted by two Chemical Examiners are discrepant about a substance contained in homogeneous solution and this principle does not apply to the case of mixture, the components of which are not uniformly mixed up.

4. It is a matter of common knowledge that illicit opium ordinarily consists of coagulated milk of poppy (papaver somniferum). The purity of such opium may vary from person to person who collect the same. The coagulated pappy milk collected by one person may contain more of dust or even impurities than such a milk collected by another person. When the opium produced by different persons is lumped together, in the very nature of things, the different portions of the lump would vary in morphine content. In a situation like this, all that has to be seen is whether the illicit opium recovered from an accused person falls within the definition of opium as contained, in Section 3 of the Opium Act, 1878 , or not. Under that provision, opium means -

"3. Interpretation-clause - In this Act, unless there be something repugnant in the subject or context, - (i) the capsules of the poppy (papaver somniferum) whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted