STATE Vs. BABULAL

JUDGEMENT

(1.) THE respondent (accused) Babulal was prosecuted for an offence under Section 34 (a) of the Excise Act in the Court of the Magistrate, First Class, Harda, for being found in illegal possession of about 24 seers of ganja The learned Magistrate by his judgment dated 30 -9 -1959 acquitted him of the offence on the ground that the prosecution evidence did not establish that the respondent was found in possession of the ganja in question nor that it was seized from his possession. The State Government has now come up in appeal under Section 417 of the Code of Criminal Procedure against the judgment of acquittal of the respondent.

(2.) THE prosecution case was that on receipt of information that the respondent accused was to smuggle some ganja during the prohibition week, on the night of 6 -10 -1956, by the Calcutta Mail into Harda town, certain police contstables were deputed by Sub -Inspector Shrivastava to keep watch over him and to apprehend him, if necessary. Consequently, police constable Jayendra Singh (P. W. 1) and head constable Liladhar (P. W. 2) accompanied with a few more constables and witnesses went to Harda railway -station and kept a close watch over the respondent. The respondent alighted from the Calcutta Mail and hired a coolie, Mannulal (P. W. 5), to take his luggage to the waiting room. There he waited till the train had left the station and the crowd had cleared. Thereafter, he engaged a tonga owned by Gulab (P. W 6) and after placing his luggage, which consisted of a hold -all, a suit -case and a hand bag, thereon, proceeded to the town. On the way, at the railway -station gate, head constable Liladhar (P W. 2) came and sat in the tonga by the side of the respondent. Near Ratilal cross -roads, the respondent somehow became suspicious and wanted to run away but was detained by head constable Liladhar (P. W. 2). On a call from the head constable Liladhar (P. W. 2), other constables, who were following the tonga on bicycles, also came there. The luggage of the respondent was taken out, which on search was found to contain 24 seers, 14 chhataks and 1 tola of ganja. The hold -all and the suit -case were both found locked, and the keys of their locks were supplied by the respondent. The ganja was seized vide seizure memorandum Ex. P -2, while the personal effects of the respondent, viz., his shirts, costs, bed -sheets, etc., including some cash, were returned to him vide Ex. P -3. after his personal search.

(3.) IN order to prove its case, the prosecution examined the head constable, Liladhar (P. W. 2), who sat with the respondent in the tonga from the railway station to the point where the seizure was made. Jayendra Singh (P. W. 1) and Jagannath (P. W. 4) the two constables who had followed the tonga on bicycles. Mannulal (P. W. 5), the coolie who had taken out the luggage of the respondent from the railway compartment to the waiting room, Gulab (P. W. 6), the tongawalla in whose tonga the respondent had travelled with his luggage from the railway station, and Badri Prasad (P. W. 9), who was a witness to the alighting of the respondent from the train as well as to the seizure of the articles by the police, and who had also signed the seizure memorandum (Ex. P -2).