STATE Vs. CHAUTHMAL GANDHI

JUDGEMENT

(1.) This is a revision petition by the State of Orissa for enhancement of the sentence passed on the opposite party by a First Class Magistrate of Sambalpur, for an offence under Section 9(a) of Opium Act. The learned Magistrate held the opposite party guilty of unauthorised possession of 184 tolas of opium and sentenced him to rigorous imprisonment for one day and also to a fine of Rs. 150/- in default to R. I. for 15 days more. Learned Standing Counsel for the State of Orissa urged that by virtue of the amendment made to the Opium Act by Act 52 of 1957, a sentence of imprisonment was made mandatory for offences under that Act and in view of the large quantity of opium found in possession of the opposite party in this case a substantive sentence of imprisonment should have been imposed instead of a nominal sentence of one day's rigorous imprisonment. We have no doubt that the sentence is too lenient and should be enhanced if the conviction can be otherwise justified.

(2.) As this is a case for enhancement of sentence the opposite party was given an adequate opportunity to show cause against his conviction also. Sri G.K. Misra, on behalf of the opposite party urged that the entire evidence of the prosecution, if believed, would not establish conclusively that the opposite party was in possession of the aforesaid quantity of opium.

(3.) The facts which are practically admitted are as follows: On 16-1-1953 the Inspector of Excise, Sambalpur (P. W. 1) went to the General Post Office Sambalpur at about 3 p. m. and searched the opposite party who was then coming out of the post office with a registered parcel tied to the carrier of his bicycle. The Inspector seized the parcel (bearing No. 102) and, on opening the same, found it to be a cylindrical tin (Nestles Milk Powder Tin). The lid was fixed so tightly that the tin had to be opened by cutting open the bottom. The tin was found to contain opium weighing about 184 tolas. Though the exact value of the opium has not been brought on the record as evidence, it was stated by learned Standing Counsel appearing on behalf of the State that the total value was Rs. 1800/- at Rs. 10/- per tola as fixed by the Board of Revenue (vide page 2 of the Instructions for De-addiction opium and issue of medicinal preparation of opium from the 1st April 1959). Mr. G.K. Misra, appearing for the opposite party did not challenge this estimate of the value of the contents of the tin seized from the opposite party. It is further clear that the said quantity of opium was sent to the opposite party by one Mataddin H. No. 1742, care of Kuchappali Ram, Bazar Sitaram, Delhi. It was received in the General Post Office at Sambalpur and intimation of its receipt was also given to the opposite party who went to that post office and took delivery of the same. His house was subsequently searched by the Excise party and a telegram sent to the opposite party by one Gur Bachan Singh of Delhi to the following effect was also seized: "Medicine ready. Wire if required." That telegram was dated 10-1-1958. No other paper was found in the possession of the opposite party to show any previous transactions between him and the aforesaid Gur Bachan Singh, or between him and the sender of the parcel namely Mataddin. Nor is there any evidence to show whether Mataddin and Gur Bachan Singh are the same persons or else whether they are employees of the same firm.