1. Learned counsel for the petitioner submitted following points in support of the revision application :-

(a) that the recovery of the impugned articles from the possession of the accused is not proved inasmuch as all the Motbars in whose presence the articles are said to have been recovered have not supported the recovery and the statements of the Excise Officers should not have been relied upon particularly when they have not furnished a copy of the information memo, on the basis of which the recovery was made ;

(b) that no charge of possession of Bhang having been framed against the accused, his conviction under section 34 (a) of the Excise Act is not sustainable ;

(c) that the conviction under section 7 (a) and (b) of the Opium Smoking Act for the alleged possession of smoking opium and pipe for the purpose of smoking opium is bad inasmuch as it has not been established that the substance recovered was smoking opium and/or that the pipe alleged to have been recovered was for the purpose of smoking opium;

(d) that the conviction under section 9 (a) of the Opium Act is also not sustainable because it has not been proved that the substance recovered had the properties of opium as defined in section 3 of the said Act.

Held : On going through the judgment of the Sessions Judge, I find that no other point except point No.1 mentioned above was argued before him. But the contention of the learned counsel for the petitioner is that the additional points which he has urged, go to the root of the matter and are purely legal and do not require any investigation into facts and he is, therefore, entitled to press the same.

2. Learned Deputy Government Advocate was not able to show how the petitioner could be debarred from pressing the additional point (Nos. 2 to 4). It appears to me that these points are legal and go to the root of the matter. Consequently, the petitioner is entitled to urge them.

3. As regards point No.2 pertaining to the question of absence of charge of possession 'Bhang', it is candidly conceded by the learned Deputy Government Advocate that there is no charge for possession of this 'Bhang'. I have also looked into the charge and find that the contention of the learned counsel for the petitioner is correct. This part of the prosecution case that the petitioner was in possession of 'Bhang' was thus not made known to the accused at the time the charge was framed. There is force in the petitioner's contention that his conviction for possession of the substance for which there was no charge would operate to his prejudice as he had no occasion to meet that case.

4. Coming to the conviction under section 7 (a) & (b) of the Opium Smoking Act, there is no charge for possession of pipe for the purpose of smoking opium. Consequently, conviction for possession of pipe cannot be sustained for the same reason as I have given in connection with the absence of charge for possession of 'Bhang' under point No.2. Further, there is no proof that the pipe was for the purpose of smoking opium. As to the illegal possession of 'Madak', that is opium, admittedly the article was not sent for chemical analysis and no data has been furnished by the Inspector who recovered the article for coming to the conclusion that the article recovered was opium. This brings me to the last point, namely-conviction under section 9-A of the Opium Act. Admittedly, there is no material regarding this article also that it came under any of the 3 definitions of opium referred to above. Thus, it could not be said with least certainty that 30 gms. of opium said to have been recovered from the house of the accused and 9 gms. from the person of the accused was in fact opium as defined in the Act. Learned Government Advocate was not able to show nor it was his contention that the capsule was of poppy or extracted spice therefrom or contained mixture of any of the forms of opium containing more than 0.2 per cent of morphine. This point could have been found in fav