JUDGMENT : A. Misra, J. - The Petitioner has been convicted u/s 9(a) of the Opium Act and Section a(b) of the Orissa Opium Smoking Act (Orissa Act XVI of 1947) and sentenced to rigorous imprisonment for one month under the former and fifteen days under the latter count. Both the sentences are to run concurrently. 2. The prosecution case is that on 31-10-1965 at about 10.00. A.M. the Sub-Inspector of Excise (p.w. 1) searched the home of Petitioner and seized, in all 116 grams of crude opium used for opium smoking. Accordingly, he was put on trial for offences u/s 9(a) of the Opium Act and Section a(b) of the Orissa Opium Smoking Act. Petitioner, in defence, made a complete denial of the search or seizure of the opium and opium smoking apparatus from his house on the date in question. 3. Prosecution examined three witnesses to substantiate the charges, p.w. 1 is the Excise Sub-Inspector who conducted the search p.w. 2 is a search and seizure witness and p.w. 3 is an Excise constable who had accompanied p.w. 1 and was present at the time of search and seizure. The learned Magistrate accepted the prosecution evidence, convicted and sentenced the Petitioner to R.I. for one month and a fine of Rs. 200/- u/s 9(O.) of the Opium Act and to R.I. for fifteen days and a fine of Rs. 100/- u/s 8(b) of the Orissa Opium Smoking Act. In appeal, the conviction under both the sections were confirmed, though the sentence under each count was reduced by confining it to the substantive term of imprisonment. 4. Learned Counsel for Petitioner challenges the validity and correctness of the convictions and sentence u/s a(b) of the Orissa Opium Smoking Act on the following two grounds: (1) The conviction under this charge is illegal, because the requirements of Section 13 of the Act were not complied with and (2) as the Act does not define the nature of apparatus used for opium smoking, the articles seized from Petitioner's house, even if the prosecution evidence is believed, cannot constitute an offence, as the said articles are also used for other innocent purposes. 5. The conviction u/s 9(a) of the Opium Act is challenged on the ground that the prosecution has not proved that the article seized is Opium as defined in the Act. 6. 5. The conviction u/s 9(a) of the Opium Act is challenged on the ground that the prosecution has not proved that the article seized is Opium as defined in the Act. 6. The first contention is that the seizure of the articles and apparatus alleged to he used for opium smoking was illegal as the requirements of Section 13 of the Act have not been complied with. I do not find any merit in this contention. Sub-section (1) of Section 13 of Orissa Act XVI of 1947 deals with the powers of a Magistrate of first or second class with which the present case is not concerned. Sub-section (2) of Section 13 runs as follows: Whenever any excise or police officer not below the rank of a Sub-Inspector has reason to believe that any place is used for the purpose of opium smoking assembly or of keeping opium and that a search warrant cannot be obtained without affording the offenders an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of belief, do any of the acts specified in Clauses (a) to (d) of Sub-section (1). Thus, this sub-section empowers an Excise Sub-Inspector to search such places when he finds that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing the evidence of the offence. In such a case, the only obligation on him is to record the grounds of his belief. In his cross-examination, p.w. 1 stated that be had recorded the secret information which he received at 8.00. A.M. on 31-10-1965, and on the basis of it, he made the search at about 10-00 A.M. This evidence stands practically unchallenged. Therefore, it is futile to contend that the search was legal on the ground that the requirements of Section 13 were not complied with. 7. The next contention is that the Act does not define or indicate the nature of the apparatus used for purposes of smoking opium, and therefore, even if the evidence of seizure of M. Os. II to VIII series is accepted, it will not constitute an offence u/s a(b). It is true that the expression "apparatus" used for smoking opium has not been defined as in the nature of things such articles cannot admit of precise definition. II to VIII series is accepted, it will not constitute an offence u/s a(b). It is true that the expression "apparatus" used for smoking opium has not been defined as in the nature of things such articles cannot admit of precise definition. What constitutes an offence is possession of any pipe or apparatus for the purpose of smoking opium. In this case, the seized articles include bamboo pipes, hukas prepared out of cocoanut shells and other items. The p.ws. have consistently stated that these items are used for smoking opium. In cross-examination, there is no suggestion even that any of these items are not used for smoking but are used for innocent purposes. In his examination u/s 342, Code of Criminal Procedure, Petitioner does not say that these articles are not used for opium smoking. Therefore, this contention also has no force. 8. The third -contention related to the charge u/s 9(a) of the Opium Act. It is argued that the onus is on the prosecution to establish that the commodity seized was opium as, defined in the Act. In this case, it is argued that the 116 grams of the substance seized being a crude type of mixture, unless prosecution proves that the same contained more than 0.2 percent of morphine, it will not be opium as defined in the Act. He refers to the following statement of p.w. 1 "From my 'Personal experience I say that it contains more than 02 per cent of morphine" and contends that it is not possible to determine the percentage of morphine content in a mixture by mere experience. Such a contention might have deserved some consideration, if the prosecution case had been that the substance seized was mixture or the defence had taken such a plea. The seizure list describes item 1 of the commodity seized as 10 to as of opium in an aluminium container and item 2 as 1 gram of opium kept wrapped in a polythin paper inside a tin. The evidence of p.w. 1 is that he recovered 10 to as of opium in the aluminium container and 1 gram of opium wrapped in a poly thin paper. To the same effect is the evidence of p.ws. 2 and 3. The evidence of p.w. 1 is that he recovered 10 to as of opium in the aluminium container and 1 gram of opium wrapped in a poly thin paper. To the same effect is the evidence of p.ws. 2 and 3. No suggestions were made to the p.ws that what was seized was a mixture nor did Petitioner in his examination u/s 342, Code of Criminal Procedure allege seizure of any such mixture. Opium has been defined in Section 3 of the Act as follows: 3. In this Act unless there is something repugnant in the subject or context, opium means (1) the capsules of poppy (papaver Somniforum (L) whether in their original form or out, crushed or powdered, and whether or not juice had been extracted there from (ii) the spontaneously congulated juice of such capsules which has not, been submitted to any manipulations other than these necessary for packing and transport and (iii) any mixture with or without neutral materials of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act 1930 (II of 1930). 9. The divergence of opinion, which existed as to whether to determine a particular substance to be opium or not chemical examination is necessary, has been set at rest by the observations of the Supreme Court in the decision reported in Baidyanath Misra and Anr. v. State of Orissa 34 (1968) C.L.T. 1 (S.C.). The conclusions arrived at by their Lordships of the Supreme Court may be summarised as follows: (1) Opium happens to be one of such sustenance which may be identified without the, necessity of subjecting the same to chemical analysis. Opium is a substance which once seen and smelt can never be forgotten, because of its characteristic appearance and very strong characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. (2) It is only when the opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being detected, by senses that a chemical analysis may be necessary. It is possible for people to identify opium without having to subject the product to a chemical analysis. (2) It is only when the opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being detected, by senses that a chemical analysis may be necessary. An analysis will always be necessary, if there is a mixture and the quantity of morphine contained in the mixture has to be established for the purpose of definition. (3) Where the evidence would show that the substance was opium and not a mixture, there is no need for chemical, analysis. 10. In the light of the aforesaid principles, the question for consideration he whether the substance seized from the possession of Petitioner was opium. P.w. 1, who by virtue of his experience is expected to know whether the substance is opium or not, has categorically stated that what was seized was opium. This has also been corroborated by p.ws. 2 and 3. Not a single suggestion has been put to any of them that what was seized was a mixture. As has been observed in the aforesaid Supreme Court decision, the question of 0.2 per cent of morphine arises only in relation to preparations which means a mixture with or without neutral materials containing any other two forms of opium as defined. Since the evidence shows that what was seized was opium and not a mixture, there was no necessity of chemical analysis. Therefore, this contention of Petitioner is also not tenable. 11. In the result, I find no merit in the contentions advanced for the Petitioner. The revision is accordingly dismissed. Final Result : Dismissed