BANCHHANIDHI SAHU Vs. THE STATE

JUDGEMENT

(1.) THIS is a revision petition against the appellate judgment of the Sessions Judge of Cuttack maintaining the conviction of the Petitioner under Section 9(a) of the Opium Act and 47(a) of the Bihar and Orissa Excise Act but reducing the sentence of imprisonment passed by a 1st class Magistrate of Banki.

(2.) ON the 22nd of November, 1952, an Excise Sub -inspector (P.W. 5) searched the house of the Petitioner at about 7 a.m., and recovered 46 tola's of ganja and 6 tolas of bhang from a Handa (brass metal pot) kept under a cot in one of the rooms in the front side of the house of the Petitioner. The house was under the occupation of the Petitioner, his old father aged about eighty -five years and his son aged about twenty two years. When questioned by the excise staff, the Petitioner was said to have made a confession admitting that the opium, ganja and bhang had been kept by him in the room and that his father and son had nothing to do with those articles. All the three persons were sent up by the Excise Officer but the learned Magistrate acquitted the Petitioner's father Gopinath Sahu and his son Chandrasekhar Sahu but convicted the Petitioner relying mainly on the recovery of the excisable articles and the confession made by the Petitioner before the excise staff. The lower appellate Court maintained the conviction but reduced the sentence.

(3.) MR . Das then contended that the examination of the Petitioner under Section 342 Code of Criminal Procedure was perfunctorily made and he was not specifically asked to explain the circumstances under which he made the confession, There is doubtless much force in this comment and if the record did not indicate that the Petitioner got an opportunity to explain the circumstances under which he made the confession, we might have been inclined to set aside his conviction and sentence, But we notice that the Petitioner was defended by a lawyer and that during the, cross -examination of the prosecution witnesses also an attempt was made to show that the confession was obtained by inducement, Moreover, the Petitioner examined two witnesses on his behalf to explain the circumstances under which the confession was made. Hence, though the learned Magistrate has committed a serious irregularity in not specifically asking the Petitioner during his examination under Section 342 Code of Criminal Procedure about the circumstances under which he made the confession we would not consider that irregularity to be fatal to the whole case in view of the fact that the Petitioner himself examined two defence witnesses to explain the confession.