JUDGMENT 1. - This revision petition is directed against the appellate judgment of the learned Additional Sessions Judge, Barmer dated 25-6-1988 whereby he has upheld the judgment of the learned Munsif & Judicial Magistrate, Barmer dated 28-4-1988, by which, the accused petitioner Rijumal has been held guilty of the offence under Section 4/9 of the Opium Act and has been sentenced to one year's rigorous imprisonment. 2. The facts necessary to be noticed for the disposal of this revision petition briefly stated are that S.H.O. Barmer Shri Ramswaroop get information that accused petitioner Rijumal is going to sell opium to somebody near Jatawas Railway Crossing. He, therefore, deployed Harkharam, Bhanwarsingh and Gurjansingh constables to keep watch. It is alleged that on 2-5-1982 at about 2.30 P.M. accused Rijumal came there. He was stopped by these constables and it was found that he was carrying opium in his bag. The Constables then immediately informed the SHO, who contacted the Deputy Superintendent of Police and thereafter, the Deputy Superintendent of Police along with SHO Ramswaroop and party reached the place of the occurrence. They took search of the accused in the presence of the Motbirs and it was found that accused was in possession of opium. As no scales were carried by the Police party, the accused was taken to the Police Station, where on weight, as found to carry 2 kilogrammes and 450 gms. of opium. 30 grams of opium was taken for sample and sealed and the remaining opium was separately seized and sealed. Thereafter, on the information of the accused, the police party went to a godown, which was in possession of accused Rijumal & there, the recovery of 1 kg, and 660 gms. of opium was made under section 27, Evidence Act. Some 56 small packets of opium were also recovered. Three big pieces of opium were also found 30 grams of opium was taken as sample and separately sealed and the remaining opium was seized and sealed. A report of this incident was lodged at Police Station, Barmer by the SHO himself, who conducted investigation of the case. 3. After usual investigation, the case against the accused was challenged in the Court of Munsif & Judicial Magistrate, Barmer. After trial, the learned Munsif & Judicial Magistrate Barmer, conviction and sentenced the accused-petitioner Rijumal as aforesaid. A report of this incident was lodged at Police Station, Barmer by the SHO himself, who conducted investigation of the case. 3. After usual investigation, the case against the accused was challenged in the Court of Munsif & Judicial Magistrate, Barmer. After trial, the learned Munsif & Judicial Magistrate Barmer, conviction and sentenced the accused-petitioner Rijumal as aforesaid. On appeal, the learned Additional Sessions Judge upheld the judgment of convicted passed by learned Munsif & Judicial Magistrate, Barmer. Hence this revision petition. 4. I have heard Mr. Rajendra Choudhary, the learned counsel appearing for the accused-petitioner and Miss Sumitra Sankhla, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 5. Mr. Rajendra Choudhary, the learned counsel appearing for the accused-petitioner has submitted that the findings of the learned lower Courts that the accused was found in possession of 2 kg. and 450 gm of Opium near the railway crossing and that 1 kg. and 660 gms of Opium was recovered from his godown on his information on and at his instance in the presence of the Motbirs are not based on sound appreciation of evidence. These conclusions which are based on concurrent findings of fact recorded by both the Courts below can be disturbed in these revisional proceedings unless it is shown that they are based on misreading of evidence or based on no evidence or are to perverse that if they are not disturbed they will result in miscarriage of justice even if two views may be possible concurrent findings of facts cannot be disturbed by a revisional court on that ground also. I have perused the judgments of both the lower courts. The learned lower courts have taken into consideration the entire evidence recorded in the case and then they have arrived at the conclusion that the accused was found in possession of this much of opium. Moreover, looking to the quantity of the opium, which was seized in this case and further looking to the fact that recovery of the opium was made in the presence of the Deputy Superintendent of Police, the allegation of false recovery is ruled out. It cannot be a case of planting of opium. In this respect I place reliance on a decision of the Delhi High Court in Jai Prakash v. State (1989) Cr. It cannot be a case of planting of opium. In this respect I place reliance on a decision of the Delhi High Court in Jai Prakash v. State (1989) Cr. LJ 1167 wherein it has been observed that where the opium was seized from the accused in the dead of night and opium was found in the search of the house of the accused, it could not be said that opium was planted on him or the search was vitiated because it was not witnessed by independent witnesses especially when the recovery was effected in the presence of a Dy. S.P. 6. It was next submitted by Mr. Choudhary that in this case, the constables were not authorised to take search of the accused and to detain him till the other Police Officers arrived. In this respect he has placed reliance on a decision of this Court is Nandlal v. State of Raj.,(1987) R. Cr. Cases 433. This case pertains to sections 8, 18 and 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985, where only the S H O is entitled to take a search. Such a prohibition is not there in the Opium Act. Moreover, in this case, the Constables only ensured that the accused is carrying Opium and when they satisfied themselves that he was carrying opium, they asked him to stop and the accused did not resist that attempt. He remained in their company till the police party came there and thereafter, the search of the accused was taken by the S.H.O. in the presence of the Motbirs. Hence, it cannot be said that it is a case of illegal detention of the accused. Moreover, if any incriminating article is found in a search, which search may even be illegal then also the recovery of the incriminating articles can be used against the accused. 7. It was next submitted that recording of the statement under section 342 Criminal Procedure Code is not an empty formality. It has to be carried out in the manner which may best serve the interest of justice and fair play to the accused, it should not be a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence and the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence. All facts, which connect the accused should be put to him in his statement under section 313 Criminal Procedure Code to obtain his explanation. In this respect, reliance has been placed on Tarasingh v. State, AIR 1951 SC 441 Ajmersingh v. State of Punjab, AIR 1953 SC 76 and Ramo Shankar v. State of West Bengal, AIR 1962 SC 1239 . It is true that in all these three authorities, it has been held that it is not a proper compliance of law to read out inclusive and log questions and then ask the accused whether the statement is correct. A question of that kind is misleading but at the same time, it has been held that every error or omission in this behalf does not necessarily vitiate a trial because the errors of this type fall within the category of curable irregularities. The question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In this case, it has not been shown what material prejudice has been caused to the accused. In all the questions that have been asked to the accused on the basis of the statements made by the witnesses it has been categorically put forth that he found in possession of opium. In answer to all these questions the accused has stated that it is wrong. He did not offer any explanation. In these circumstances, unless any prejudice is caused to him by asking long and inclusive questions, the trial cannot be held to have vitiated. Moreover, this point was not raised before the trial court or before the learned appellate court which clearly shows that no prejudice has been caused to the accused. 8. It was next argued by Mr. Choudhary that it is the settled law of the land that every circumstance that comes in evidence against the accused has to be put to him otherwise, it cannot be used against him. In this respect, he has placed reliance on Sharad v. State of Maharashtra, AIR 1984 SC 1622 and Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 . In both these authorities, it has been held that unless the circumstances appearing against an accused is put to him in his examination under section 342 of old Code or section 313 of the new Criminal Procedure Code. In both these authorities, it has been held that unless the circumstances appearing against an accused is put to him in his examination under section 342 of old Code or section 313 of the new Criminal Procedure Code. the same cannot be used against him. Mr. Chaudhary, the learned counsel, appearing for the accused-petitioner, has tried to canvass before me that in this case, although the report of the chemical examiner has been put to the accused in his statement under section 313 Criminal Procedure Code but the Morphine content found in the opium which was recovered from him was not put to him in his statement under section 113 Criminal Procedure Code . He has, therefore, submitted that on this basis also, the judgments of the courts below deserve to be set aside. In support of this contention Mr. Chaudhary has placed reliance on Surendra Prasad v. State of Gujarat, 1980 Cr. LJ 1016 wherein it has held that each and every circumstance appearing in evidence against the accused must be separately and distinctly put to him. That of course is a general authority and, therefore, it is not of much consequence. 9. In State of Kerala v. Rajappan Nair, 1987 Cr. LJ 1257, a learned Single Judge of the Kerala High Court held that in case where items of evidence are not at all put to accused when he is questioned under section 313 Criminal Procedure Code , such evidence cannot be considered in deciding guilt of the accused. In this case, the report of the chemical examiner has been put to the accused in his statement under section 313 Criminal Procedure Code and, therefore, State of Kerala's case (supra) does not help the accused. 10. Mr. Choudhary has placed reliance on Moolchand v. State of Punjab, 1984 Chandigarh Cr. Cases 95 wherein no question about misbranding of Oil was put to the accused and instead question was put to him about adulteration. In these circumstance it was held that the case of accused was prejudiced due to improper examination accused and therefore, the accused was acquitted. This authority also does not help the accused. In this case, the chemical examiner's report was out to the accused and about that report, the accused has not offered his explanation. 11. In Chaturbhuj v. State of Haryana, 1984 Chandigarh Cr. This authority also does not help the accused. In this case, the chemical examiner's report was out to the accused and about that report, the accused has not offered his explanation. 11. In Chaturbhuj v. State of Haryana, 1984 Chandigarh Cr. Cases 439 the contents of the report of Public Analysts were not put to the accused in detail and, therefore, it was held that the report cannot be used against the accused. Similarly reliance was placed on a decision of the Delhi High Court in Vijay Kumar v. State of Punjab, 1985 (I) Cr. LR 98 where the report of Public Analyst with its contents was not specifically put to the accused by the trial Magistrate while examining the accused under section 313 Criminal Procedure Code and, therefore, the conviction of accused was set aside. 12. Reliance was also placed on a decision of the Punjab & Haryana High Court in Amarnath v. State of Haryana, 1986 Chandigarh Cr. Cases 388 wherein it has been held that failure to put questions pertaining to the extent of adulteration while examining the accused under section 313 Criminal Procedure Code is a material flaw in the trial of the accused and consequently, the accused was acquitted. All these cases relate to P.F.A. Cases. Food articles are numerous and they require different standards as per the law. So far as opium is concerned, it is only of one type i.e. whether it as opium or not and the difference may be only about the morphine contents and nothing else. In Jai Prakash's case (supra), a learned Single Judge of the Delhi High Court has held that it is unnecessary to get seized opium examined by a chemical examiner. People by smell and right could identify opium and there was no need for chemical examination. One need neither be a cultivator nor a dealer not even an excise officer to be able to identify opium. It is only in the case of a mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneous coagulated juice of capsules of poppy and has not been submitted to any manipulation, no chemical examination is called for. It is only in the case of a mixture that an analysis is necessary in order to determine whether the mixture is opium or not. But where the article is spontaneous coagulated juice of capsules of poppy and has not been submitted to any manipulation, no chemical examination is called for. Opium has a characteristic appearance and characteristic scent and unless it is diluted or manipulated, anyone can say that it is opium as it could be said of all series like petrol, kerosene, turpentine etc. 13. In this case, the report or the chemical examiner has been put to the accused in his statement under section 313 Criminal Procedure Code. Only a specific question about its morphine content has not been put to him in his statement under section 313 Criminal Procedure Code and that has not caused any prejudice to the accused. In all the questions that have been asked, it has been specifically stated that the accused was found in possession of opium and his answer was that it is wrong. He does not say that the material that was found in his possession was not opium. His contention is that he was not found in possession of the opium and that contention has been overruled by the courts below and consequently. it cannot be said that he was not found in possession of opium. The only explanation that has be offered by hint is that he has been falsely implicated in the matter because of his enmity with Constable Harkharam to whom he gave one bag of Bajara on loan and when that amount was demanded, that man involved him in this false case. Not a single question has been asked to PW 1 Harkharam in his statement that he has ever purchased Bajara from accused-petitioner Rijumal and, therefore; the learned lower courts have rightly disbelieved this explanation of the accused, therefore, feel that these authorities which relate to PW 1 cases cannot help the accused, who has been found in possession of opium. Thus, on account of the non-mention of specific morphine contents found in the opium to the accused in his statement under section 313 Criminal Procedure Code does not prejudice the case of the accused, and, therefore, the concurrent findings of the courts below that be was found in possession of opium cannot he set as naught on this ground. 14. Thus, on account of the non-mention of specific morphine contents found in the opium to the accused in his statement under section 313 Criminal Procedure Code does not prejudice the case of the accused, and, therefore, the concurrent findings of the courts below that be was found in possession of opium cannot he set as naught on this ground. 14. It was next submitted by Mr. Choudhary that evidence has not been properly appreciated. Moreover, the evidence of second search has not been properly discussed. This is a very vague allegation. I have gone through the judgment of the courts below and felt that evidence has been properly appreciated by the learned lower courts. Thus, the decision of this Court in Jamna Lal v. State of Raj., 1987 Raj. Cr. Cases 473 has no application to the facts and circumstances of this case. 15. It was next argued by Mr. Choudhary that the godown from where the recovery of opium was made on the information and at the instance of the accused was not in his possession. This is a finding of fact and it cannot he interfered with in revision. Both the courts below have discussed the evidence with regard to the possession of this godown from where, the recovery has been made on the information and at the instance of the accused, who opened that godown after obtaining its key from his own house and, therefore, it cannot be said that this finding is perverse and hence, it cannot be interfered with. 16. It is alleged that one independent witness of recovery i e. Babulal has been withheld by the prosecution. It is not essential to examine all the Motbirs. Some of the Motbirs have been examined and they have turned hostile. Simply because, one of the Motbirs has not been examined, it does not vitiate the trial. Thus, Bubu Maulana Ors. v. State of Raj., 1986 RLR 573 has no application to the facts and circumstances of this case. That was of course a murder case in which the statements of the witnesses of nearby places who could have and who were independent witnesses were not get recorded and only interested witnesses were examined by the Police and in these circumstances, it was held that the case of the prosecution is doubtful. That was of course a murder case in which the statements of the witnesses of nearby places who could have and who were independent witnesses were not get recorded and only interested witnesses were examined by the Police and in these circumstances, it was held that the case of the prosecution is doubtful. In this case, the independent Motbirs have been examined and they have signed the recovery memos and, therefore, this authority has no application to the facts of the present case. 17. It was next submitted by Mr. Choudhary that the second recovery made from the godown pertains to the recovery of three big pieces of opium and 56 small packets of opium and some other loose opium which was found in a gunny bag but the sample was taken only from the big pieces of opium and, therefore, it cannot be said that the entire material which was found in the godown was opium. In this respect, reliance was placed on Shanker v. State of Raj., 1985 Cr. L J. 600 wherein it has been observed that since only two bottles containing the liquid were sent for chemical examination to the Chief Public Analyst and on chemical examination, they were found to contain the liquor what can be held is that only two bottles of liquor were found in possession of the accused. It cannot be positively said that the remaining 131 bottles containing liquid, found in possession of the accused were of liquor. 18. Reliance was also placed on a decision of this Court in Pannalal v. State of Raj., 1984 WLN (UC) 168 wherein it has been observed as under : "There is no dispute that eleven gunny bags each containing 20 bottles of liquor were found in possession of the accused. There is also no dispute that sample from any one bottle out of 209 bottles found in each gunny bag was taken. The sample of the liquids of the remaining l9 bottles of each gunny bag that is to say 209 bottles were not taken thus, the samples from the liquid contents of only eleven bottles were taken. There is also no dispute that sample from any one bottle out of 209 bottles found in each gunny bag was taken. The sample of the liquids of the remaining l9 bottles of each gunny bag that is to say 209 bottles were not taken thus, the samples from the liquid contents of only eleven bottles were taken. Since, the samples from the remaining 269 bottles were not taken, it cannot be said that the liquid found in these 209 bottles was liquor." In this case, it is true that from the opium that was recovered from the godown of the accused, the sample was not taken from every piece or packed of opium. In such cases, the S H O. should have mixed the entire collected material that was recovered and then from that material collected and mixed together, he should have taken out 30 grams of opium but that has not been done in this case and so, it cannot be said that the material that was found in those 56 small packets was opium. 19. Lastly, Mr. Choudhary has submitted that this occurrence took place on 12-5-1982. The accused is facing trial for the past about 6 years and 4 months. He is in custody since 25-6-1988 and, therefore, he be released on probation. In support of his argument, Mr. Choudhary has placed reliance on a decision of this Court in State of Rajasthan v. Tejmal, 1979 Cr. LJ 263 (Raj). That was a case in which Chillis were found to be adulterated. The accused was not granted benefit of probation but keeping in view the fact that he was aged about 70 years and was facing trial for the past about 9 years, the accused was sentenced only to a fine of Rs. 1,000/- 20. Reliance was also placed on a decision of this Court in Hanuman Sahai v. State of Raj., 1982 RLR 543 wherein the occurrence took place in the year 1968 and the accused was facing trial for the past about 14 years for the offences under sections 147, 447, 379 and 149 IPC and under these circumstances, the accused was extended benefit of probation. The case in hand is not a case of any economic offence but it relates to illicit trade narcotic drugs. Reliance was placed on a decision of this Court in Ghasilal v. State of Rajasthan, 1983 Raj. The case in hand is not a case of any economic offence but it relates to illicit trade narcotic drugs. Reliance was placed on a decision of this Court in Ghasilal v. State of Rajasthan, 1983 Raj. Criminal Cases 379. In that case, the accused was found in possession of 6.150 gms. of opium in the year 1968. His case was decided in the year 1983 i.e. after about 15 long years. He had remained in custody for a period of one month and, therefore, he was let off on the sentence already under gone by him. The Narcotic Drugs and Psychotropic Substances Act has come into force in the year 1985 and thus, Ghasilal's case is prior to the coming into force the aforesaid Act which has changed the entire thinking and complexion about the gravity and character of this offence. 21. Reliance was also placed on a decision of this Court in Hirkanram v. State of Raj., S.B. Cr. Revision Petition No. 162 of 1988, decided by this Court on 19-8-1988 wherein the accused was found in possession of 4.190 gms. of opium on 5.7.77. He was held guilty of the offence under section 9 of the Opium Act and was sentenced to four months rigorous imprisonment as he has placed trial for about 11 long years. In this case, the offence took place in the year 1982 and he is facing trial for the past about 6 years. These days, the Narcotic offences have become rampant in the country and they are adversely affecting the health of the entire young generation and so, the Opium Act has been repelled and the Narcotic Drugs and Psychotropic Substances Act, 1985 has come into force. Of course, in this case we cannot he guided by the provisions of the Narcotic Act but keeping in view the fact that these days, the illicit trade in Narcotic Drugs is on an increase and it is causing great hazards to the life of the society, much leniency is not called for in such cases. The accused-petitioner has been sentenced to one year's rigorous imprisonment for the offence under section 4/9 of the Opium Act, keeping in view the fact that he is facing trial since 1982, deem it proper to reduce his sentence of one year rigorous imprisonment to 6 months rigorous imprisonment. 22. The accused-petitioner has been sentenced to one year's rigorous imprisonment for the offence under section 4/9 of the Opium Act, keeping in view the fact that he is facing trial since 1982, deem it proper to reduce his sentence of one year rigorous imprisonment to 6 months rigorous imprisonment. 22. In the result, I accept this revision in part maintain the conviction of the accused-petitioner Rijumal for the offence under section 4/9 of the Opium Act and reduce his sentence from one year's rigorous imprisonment. The accused is in jail. The Jail authorities be informed about this changed sentence, awarded to him for necessary compliance.Revision partly allowed. *******