KAILASH CHANDRA SAHU Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment dated 19-5-77 of the High Court of Orissa. By our order dated 1-8-85 we dismissed the appeal and we now proceed to give our reasons for the same.

(2.) This case involves a very short point, viz., where opium is found in the licensed ganja shop of the licensee and the salesman alone was present in the shop, would the licensee be liable for having committed the offence of possession of opium The facts of the case have been fully narrated in the judgments of the courts below and it is not necessary for us to repeat the same all over again. The facts clearly show that the opium was kept in the licensed shop of the appellant and the mere fact that he was absent at the time of the raid would not absolve him from criminal liability.

(3.) The only argument put forward by the counsel for the appellant was that as the appellant was merely a licensee of the shop he could not be held responsible for anything recovered from his shop - 665 gms. of opium was recovered from the shop when the servant was present. In this connection, reliance was placed on two decisions of this Court in Prithvisinghji Bhimsinghji v. State of Bombay AIR 1960 SC 483 and Radhakrishan v. State of U. P. (1963) 1 Suppl. SCR 408. We have gone through these decisions but, in our opinion, they are not directly in point. On the other hand, a later decision of this Court in Inder Sain v. State of Punjab (1974) 1 SCR 215 clinches the issue on the point of law argued before us. Before going to this authority, we might refer to S. 10 of the Opium Act, 1878 (for short, referred. to as the 'Act') which raises a presumption that where unauthorised possession of opium is not properly explained, there would be a presumption under S. 10 that the accused had committed the offence. Section 10 may be extracted thus: