ORDER
Falshaw, J.
1. Gujar Singh petitioner was convicted by a Magistrate at Tarn Taran under Section 9 of the Opium Act and sentenced to three months’
rigorous imprisonment, his appeal being dismissed by the Sessions Judge at Amritsar.
2. The case against the petitioner was that he was found in possession of five seers of what are prescribed as opium extracted poppy heads at his house. He denied the alleged recovery, but this was held to be proved against him, and the argument put forward in revision is that under the law as it stands the possession of opium extracted poppy heads is not an offence. In the relevant rule framed under the Excise Act it appears that the only opium poppy heads which amount to opium within the definition “opium impregnated” poppy heads, and at the time when the present offence was committed the lawful possession of these poppy heads was limited to one seer.
3. My attention has been drawn to the de
cision of Kapur and DuJat JJ. in The State v.
Sohan Lal. AIR. 1956 Punj 159 (A), in which it
was held that the possession of husk of poppy
heads called bhuki was no offence, although this
case was decided on the basis that the possession
of poppy heads in excess of two seers was unlaw-
ful. It seems that in fact the amendment of the
rule which was introduced in 1955 was not brought
to the notice of the learned Judges, but at the
same time it is quite clear that if It had been,
the case of the accused would have been even
stronger, and the learned Judges dissented from
a decision of the Nagpur High Court in which
it was held that the shells of poppy heads possessed in some measure the active properties ofopium and could be used as an intoxicant and
therefore came within the definition of “opium”.
The amendment of the rule by which only the
possession of opium impregnated poppy heads is
limited makes it quite clear that the possession
of poppy heads from which the opium has already
been extracted cannot possibly be intended to be
unlawful. I accordingly accept the revision petition and set aside the conviction and the sentence of the petitioner whose bail bond will accordingly be cancelled.