JUDGMENT 1. - Petitioner Bhagirath was tried and convicted by the judicial Magistrate No. 1, Jodhpur for the offence under section 4/9 of the Opium Act (hereinafter to be referred as the Act) and sentenced to one years rigorous imprisonment and a fine of Rs. 500/-, in default to further suffer three months simple imprisonment. Being aggrieved by his conviction and sentence, the petitioner preferred an appeal in the court of Sessions Judge, Jodhpur. The case was transferred to the court of Additional sessions Judge, No. 1, Jodhpur, who by his judgement dated 12-7-77 maintained the conviction of the petitioner but reduced the substantive sentence to six months rigorous imprisonment. The sentence of fine was maintained. Being dis-satisfied with his conviction and sentence the petitioner has now invoked the revisional jurisdiction of this court. 2. The facts relevant for the disposal of this revision petition are that on 15-10-73 at 5.15 P.M. the cheeking party of the Narcotic Department checked the petitioner Bhagirath while he was travelling in a Bus. A bag containing 1kg and 750 grams of opium was recovered from his possession. After completing the necessary formalities the Dy. S.P. Santok Singh filed a report at police station Jhanwar. The sample of opium taken at the time of the checking was sent for chemical analysis. The report of the chemical Analyser showed that the sample sent was positive for morphine. 3. The point raised by Mr. M.M. Singhvi, learned counsel for the petitioner in this Court is that there being no convincing evidence about the article alleged to have been recovered from the possession of the petitioner being contraband opium, the two courts below have legally erred in holding the petitioner guilty for the offence under section 4/9 of the Act. Mr. Singhvi referred to the case of Bhairulal v. The State, 1956 RLW 413. and Boota Singh v. State of Punjab, 1980 Cr.LJ. (P&H) 336 to substantiate his contention that a person can be held guilty only if the article recovered from his possession falls within the definition of Opium as given in section 3 of the Act. It has been stressed by Mr. and Boota Singh v. State of Punjab, 1980 Cr.LJ. (P&H) 336 to substantiate his contention that a person can be held guilty only if the article recovered from his possession falls within the definition of Opium as given in section 3 of the Act. It has been stressed by Mr. Singhvi that the report of the public Analyst has not been relied on by the learned trial Magistrate and, therefore, merely on the basis of the opinion of the narcotic personnel and one motbir, it should not have been held that the article recovered from the petitioner was opium so as to make him liable for conviction under section 9 of the Act. 4. Controverting these submissions, Mr. H.N. Calla learned Public Prosecutor contended that it is now well settled that the persons having experience of dealing in opium matters are in a position to state that a particular article is opium and therefore, even in the absence of any report of the chemical analyser, conviction may be justified. To substantiate his argument he referred to certain cases which I would just discuss. 5. In the case of Bhairulal v. The State, 1956 RLW 413 , the only witness Examined by the prosecution to prove that the recovered article was contraband opium was a police constable who could not say whether the recovered article was pure or adulterated opium and had to state that he did not get chemically examined the recovered article. While discussing the peculiar facts of the case; his lordship had referred to the Definition of Opium as given in Section 3 of the Act and held that simply saying that the substance was opium would not do. In the case of Boota Singh v. State of Punjab, 1980 Vr. L.J. (P&H) 336 the question before the Court was whether in the absence of specific finding of the Chemical Examiner regarding the form of Opium within the three clauses of Section 3 of the Act conviction is sustainable and it was held that merely because the substance contained morphine in high percentage or otherwise it cannot be considered as opium. 6. In both the cases referred to above, the point regarding the experience and the capability of the witnesses to recognise the article to be opium was not the subject-matter of discussion. 7. 6. In both the cases referred to above, the point regarding the experience and the capability of the witnesses to recognise the article to be opium was not the subject-matter of discussion. 7. In the case of Virendra Kumar v. The State of M.P., 1975 JLJ SN (97) 71. referred to by Mr. Calla, the question for decision was whether in the absence of the evidence of the Chemical Analyser, conviction can be based under Section 9 of the Opium Act, on the basis of the evidence either of the Police Officer or any other person accustomed to see the article and test it by smell. The finding of his lordship was that such an evidence would be sufficient to prove that the article seized was contraband opium. 8. The question of the weight to be attached to the testimony of witnesses who by smell can identify opium came for consideration before this Court in the case of State v. Sukhram the Others, 1976 Cr. LR (Raj.) 237. and along with other factors going in favour of the prosecution it was observed that the witnesses of the prosecution have stated that the bags seized contained opium. His lordship observed that people by smell can identify opium. 9. Whether chemical examination is necessary in order to arrive at a conclusion whether the seized article is opium or not and whether in the absence of such an analysis, conviction can be based on the testimony of other witnesses was the subject matter of decision in the case of Anaram v. State of Rajasthan, 1977 Cr LR (Raj.) 162. . The identity of the samples sent to the chemical examiner not being established in the case, the report of the chemical examiner was not held to be worth reading against the accused. The case was, therefore, hinging on the oral testimony of other prosecution witnesses. His lordship dealt-with the definition of Opium given in the Act and the three categories included therein and observed that it is only in case of mixture that an analysis is necessary in order to determine whether the mixture is opium or not, but where the article is spontaneously coagulated juice of capsules of poppy and has not been submitted to any manipulation, no chemical examination is necessary. His lordship made a reference of the observation in the case of State v. Sukhram and Others, 1976 Cr.LR (Raj) 237 decided by himself that people by smell can identify opium. His Lordship also referred the principle annunciated by their Lordship of the Supreme Court in the case of Baidyanath Mishra and Anr. v. State of Orissa, Criminal Appeal No. 270 of 1964 dated 17-4-1964 referred in the case of State of Andhra Pradesh v. Modiga and Others, AIR 1976 SC 1550. In that case their lordship have been pleased to hold as under : "It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristics appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or Capable of being apprehended by the senses that a chemical analysis may be necessary." 10. The above discussion makes it clear that in cases where there is evidence of people having experience in detecting an article to be opium by taste or smell the conviction can be based even in the absence of opinion of the chemical analyst. 11. The learned counsel for the petitioner next contended that even if the above principle is applied still the conviction in the present case is not sustainable for the reasons that there is no definite evidence of any witness that he had found out by smell or taste that the article seized from the possession of the petitioner was opium. The argument has no force for the reason that the two courts below have given a definite finding that there is evidence to the effect that the article in question was opium. This Court while exercising the revisional jurisdiction is not expected to re-appraise the evidence and to find out whether an opinion different from the two courts below can be arrived at. Despite that I carefully examined the evidence as the prosecution case was hinging on the oral testimony of the witnesses because the report of the chemical analyser was not given any weight. Dy. Despite that I carefully examined the evidence as the prosecution case was hinging on the oral testimony of the witnesses because the report of the chemical analyser was not given any weight. Dy. S. P. Santok Singh (P.W.l) had claimed to have 20 years experience to enable him to detect an article to be opium by smell. The independent witness Motbir Loonkaran had also claimed the knowledge to detect opium by smell. 12. In these circumstances, the prosecution case about the seized article being opium having been duly established, the findings of the trial Magistrate affirmed by the appellate court suffers from no infirmity. 13. Mr. Singhvi prayed that a lenient view may be taken in the matter. The appellate court has already taken into consideration the facts and circumstances of the case and reduced the substantive sentence of one years rigorous imprisonment to six months rigorous imprisonment. In may opinion, no further leniency is called for. 14. Consequently, the revision petition having no force is dismissed. The petitioner is on bail. The Chief Judicial Magistrate, Jodhpur is directed to effect the arrest of the petitioner by issuing warrant of arrest and then to send him to custody to suffer the sentence awarded to him.Revision Dismissed. *******