RUPAN KONWAR Vs. THE STATE

JUDGEMENT

(1.) THE petitioner Rupan Konwar was convicted u/s. 9(a), Assam Opium Act, and sentenced to undergo 6 months R.I. by a Magistrate (1st Class), at Dibrugarh. His conviction was upheld by the Ses. J., U. A. D. He, however, altered the sentence. The substantive sentence of imprisonment was reduced to 5 months and a fine of Rs. 500/ - was imposed instead of the remitted part of the sentence. In default of payment of the fine, the petitioner was ordered to undergo R.I. for one month. The petitioner has come up on revision to this Court. Interference on revision is sought for on the ground, first that the conviction is not maintainable & secondly, that the modification in the sentence introduced by the learned Ses. J. amounts to enhancement of the sentence which the learned Ses. J. had no power to order.

(2.) THE prosecution case was that on the morning of 13 -7 -1947 petitioner Rupon Konwar & Nabin, his companion, were seen going along the road near Tengakhat Bazar. They were stopped in front of the house of Ramjatan, a prosecution witness, by the Excise Jamadar Sarubar Gogoi, P.W. 1. He wanted to search the persons of the petitioner & his companion & called two witnesses. When the petitioner saw them coming, he threw away a packet in a road side ditch. The Excise Jamadar, after getting his own person searched, entered the ditch & brought out the opium and the paper wrapper which had covered it. At the trial the prosecution case was fully supported by the Excise Jamadar & two witnesses Ramjatan & Mahananda Kakati.

(3.) THE evidence was considered in the Courts below & the findings arrived at in these Courts were that the circumstances of the case exclude the possibility of planting. The quantity of opium discovered is one of these circumstances. Such a quantity would be difficult to obtain for purposes of planting. The alleged enmity of the accused with the Jamadar & P.W. 2 also was not found to have been substantiated. There is again no reliable evidence to show that P.W. 2 was arrested in the first instance in connection with this occurrence as held in the Courts below. We have been taken through the evidence by the Learned Counsel for the petitioner & we see no reason to differ from any of the findings arrived at by the Courts below.