JUDGMENT : R.K. Das, J. - The facts giving rise to this appeal are as follows. On 26-6-1958 p.w. 1, an Excise Sub-Inspector of Puri Sadar raided a room said to have been in the occupation of one Brahmandnda Mohanti in Sriram Kuteer in Mali Sahi in the town of Puri. On search of the room the key of which was delivered to p.w. 1 by one Gelli Dei (Respondent No. 1 in this appeal) Brahmandnda (Respondent No. 2) being absent and opening the said room 5 bags weighing a bout 4? maunds of dry capsules of poppy in powdered and crushed form and one scale and five weights were found, each bag containing about 36 seers. P.W. 1 seized the 5 bags of capsules (M.O. I series) and the scale and weights (M.O. II series) and prepared a seizure list (Ext. 1). Again on 1-7.1958, p.w. 1 and the staff surrounded the very same house and seized two postcards (M.O. III series) alleged to have been written by Brahmandnda to accused Gelli. One sign-board (M.O. IV) was also seized by him under seizure list (Ext. 1). M.O. III series, namely, the letters said to have been sent by Brahmandnda from Dhenkandl to Gelli Dei at Puri purporting to have said something about the stock of poppy capsules and the sale thereof. M.O. IV, the signboard purports to give a notice to the public that crushed seeds of poppy are old there. Being armed with these materials, p.w. 1 submitted a prosecution report against accused Gelli Dei alias Udia (Respondent No. 1) and Brahmandnda Mohanti (Respondent No. 2) for the alleged offence u/s 9 of the Opium Act, 1878 (I of 1878) read with the amending Sections 3 and 9 of the Opium Laws (Amendment) Act, 1957 as they were found to be in illegal possession of dry capsules of poppy in cut and accused form. 2. The prosecution has examined some witnesses to prove that the accused persons were in possession of the room from which the alleged recovery was made and that they are liable to be punished under law of contravention of the provisions of the Opium Act. 3. 2. The prosecution has examined some witnesses to prove that the accused persons were in possession of the room from which the alleged recovery was made and that they are liable to be punished under law of contravention of the provisions of the Opium Act. 3. It may be mentioned here that the definition of the word 'opium' as found place in section a of the Opium Act I of 1878 meant 'capsules of poppy only' but did not include cut, crushed or powdered capsules of poppy. It is for this reason, in prosecution of some cases of this nature, the High Courts in India including our High Court have held that possession of capsules of poppy in cut, crushed or powdered form do not constitute an offence u/s 9 of the Opium Act. Probably, on account of such situation in law, the Opium Laws (Amendment) Act, 1957 (Act 52 of 1957) was passed by the Parliament and received the assent of the President on 21-12-1957- In this amending Act of 1957, the definition of 'opium' in Section 3 was given as follows: The capsules of the poppy, whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted there from. The above provision was substituted in place of the previous definition in Section 3(i) of the old Act of 1878 The position therefore, was that since the amendment Act came into force that is, from 21-12-1957, the possession of opium which means the case of poppy whether in their original form or cut, crushed powdered and whether or not juice has been extracted there from became an offence punishable u/s 9 of the Opium Act, 1878 (Act I of 1878). 4. The Government of Orissa after the amendment came into force issued a press note under the authority of the Revenue Department dated 2-8-195S published in the Orissa Gazette announcing that the possession of such capsules as included in the Above definition of opium is illegal. Soon after on 6-8-1958, a local paper caned 'Prajatantra' published such press note in Oriya for the information and guidance of the Orissa public. Soon after on 6-8-1958, a local paper caned 'Prajatantra' published such press note in Oriya for the information and guidance of the Orissa public. The learned Magistrate, however, though held that the capsules of poppy were seized from the room rented to the accused Brahmandnda, acquitted him on the ground that the detection of the offence having been made on 26-6-1938, that is, some time prior to 2-8-1958, the date of publication of the press note in the Gazette, no offence had been committed as according to him 'the possession, sale etc., of the capsules before 2.8.1958 is not an offence in Orissa, particularly when such possession was going on with impunity for some time prior to the first publication in the Orissa Gazette'. From this, it appears that the learned Magistrate was of the view that it is only after 2-8-1958 that the public was in a position to know that possession of the capsules of poppy in cut, crushed, powdered or other forms is an offence. This is, however, a wrong notion of law. This amending law was to take effect from the date of the amendment that is from the date the amendment Act received the assent of the President, and not from the date when the Press Note was published in the Gazette or a translation of the same was published in the local paper 'Prajatantra'. The construction of an Act which has been amended is now governed by technical rules and one must be clear about the proper canons of construction. When a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier Act, then the earlier Act must be so read and construed except where this would lead to repugnancy or inconsistency or absurdity as if the altered words have been written into the earlier Act and the old words have been scored through, so that there is no need to refer to the amending Act at all. 5. Therefore, it is clear that on the date of occurrence, namely, 26.6-1958 the possession of the capsules of poppy in the form of cut, crushed 07 powder amounted to an offence punishable u/s 9 of the Opium Act. The construction as given to the law by the learned Magistrate is therefore wrong. 6. 5. Therefore, it is clear that on the date of occurrence, namely, 26.6-1958 the possession of the capsules of poppy in the form of cut, crushed 07 powder amounted to an offence punishable u/s 9 of the Opium Act. The construction as given to the law by the learned Magistrate is therefore wrong. 6. With regard to the question of possession there appears to be nothing in the evidence to support the finding of the learned Magistrate that the room from which the capsules of poppy were found was rented to the accused, Brahmandnda. On this point, two factors stand deadly against the prosecution which evidently have not been examined by the learned Magistrate. Firstly, Mahant Bairagi Charan Das, the landlord of Sri ram Kuteer who rented this house to Brahmandnda and who was most competent to say whether or not his house was let out to Brahmandnda has not been examined in this case, though it appears from the evidence of p.w. 1 that he contacted Bairagi Charan Das and took down his evidence. P.W. 2 goes a step further and says: 'On the first occasion of search accused Udia alias Gelli, the servant of the Math, was present and on the second occasion the Mahant himself was present'. There is there fore no doubt about the fact that Jabant Bairagi Charan Das was there in the Muth itself particularly at the time of the second search and there is no reason why he should not have been examined as a prosecution witness on a most important point touching the fate of this case namely, who was, in fact, in possession of the premises in question-whether he himself or Brahmandnda or anybody else. The second factor which is of considerable importance is that though those two postcards (M.O. III series) purport to connect Brahmandnda with the ownership of the said bags of capsules and also the association of Gelli (Respondent No. 1), which might have been the best evidence to connect both of them, yet the prosecution has taken no steps to prove the contents of the documents by any evidence whatsoever. The learned Magistrate has, therefore, rightly not put those documents to the accused persons u/s 342, Code of Criminal Procedure. 7. The learned Magistrate has, therefore, rightly not put those documents to the accused persons u/s 342, Code of Criminal Procedure. 7. P.W. 1 has admitted in his cross-examination that accused, Brahmandnda had taken the house on rent from the Mahant, but he did not seize any paper in connection with the rent. Moreover, Brahmandnda was not present at the time of any of the searches. The prosecution having failed to place the most important evidence to involve Brahmandnda and the other evidence being not of a very satisfactory character, it is difficult to hold conclusively that Brahmandnda and nobody else was in possession of the room in question. As regards Gelli Dei, the prosecution evidence throughout that she was a mere servant and was in charge of Sriram Kuteer. So, it is just possible that she might have simply been in possession of the key of the room without knowing the contents of the room and in any event, the necessary mens rea is lacking so far as she is concerned. She cannot, therefore, be saddled with liabilities of being in conscious possession of the contraband goods. 8. The seizure of M.O. IV leads nowhere apart from the fact that it was found hung at the front of the very premises of the Muth and not the room in question. Moreover, it is difficult to know why this signboard was not seized on 26-6-1958 if it was really to connect the same with the crime. In this connection, it may be noted that p.w. 2 has said: 'At the time of the first search the sign board was there in front of the house. I had seen the sign board myself". So also, is the version of p.w. 3; whereas the evidence of p.w. 1 is to the contrary when be says: "On the first day of my search I did not see the sign-board. It was not hung at that time. So, this confused evidence of the recovery of the sign-board itself which has been produced as a substantial piece of evidence to show that regularly sale of those capsules had taken place at the said premises, has also not been proved. In this state of evidence, it is difficult to bold that the Respondents were in possession of the capsules to be punishable u/s 9 of the Opium Act, 1878 (Act I of 1878). In this state of evidence, it is difficult to bold that the Respondents were in possession of the capsules to be punishable u/s 9 of the Opium Act, 1878 (Act I of 1878). The result therefore is that this Government Appeal is dismissed. Final Result : Dismissed