PADMESWAR BARUAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) POISON kills a man; opium kills a race, a civilization, and that too imperceptibly so far as the victims are concerned. It is because of this that every enlightened Government has been showing its concern with the menace of opium consumption, which, however, is kept intact by the operators of the underworld, who for the sake of their fabulous profit persist in indulging in this social crime and smuggle the commodity in such a way that only strict vigilance can save the society. The present is one such case.

(2.) HEREIN two innocuous looking crates (boxes) had been taken delivery of on 22 -8 -72 from the office of M/s. Bharat Roadways Corporation, Jorhat when the excise staff caught Padmeswar Barua, one of the petitioners before this Court, and one Badan in front of the office. One Dimbeswar was also taken care of, so were the two crates, on opening which it was found that each had 51 packets each containing 500 grams of opium. So the total haul was of 51 Kg. The next day, a search was conducted in the house of Padmeswar where 160 grams of opium was recovered in a half -burnt condition in the oven of the kitchen. Subsequently, a prosecution was launched against the aforesaid Padmeswar, Dimbeswar and Madoi, wife of Padmeswar. On conclusion of the trial, Padmeswar was found guilty under Sections 5(a) and 6 of the Assam Opium Prohibition Act, 1947, for short the (Assam) Act; Dimbeswar under Sections 9 and 10 of the Act and Madoi under Section 5(a). Padmeswar was sentenced for the offence under Section 5(a) for a term of 3 years and to pay a fine of Rs. 1,000.00 in default to suffer another term of imprisonment for 6 months. For the offence under Section 6 of the Act, he was sentenced to undergo. R. I. for two years and to pay a fine of Rs. 1,000.00, in default of payment of fine, a further term of six months. Dimbeswar was awarded a sentence of R. I. for three years and a fine of Rs. 1,000.00. in default R.I. for six months more. As to Madoi, keeping in view the fact that she is a housewife and has minor children. R. I for one month and a fine of Rs. 500.00. in default of payment of fine. R. I for three months more was inflicted as punishment. On appeal being preferred, the conviction under Section 6 of the Act in so far as Padmeswar was concerned was set aside. The petitioner (appellant) could get no other relief at the hand of the learned Sessions Judge. Padmeswar and his wife are before this Court in the present revision.

(3.) WE may first take up the case of Madoi which lies within a narrow compass. A perusal of the impugned judgment shows that she has been convicted under Section 5(a) of the Act because of recovery of 160 grams of opium in her kitchen. The independent witnesses to the seizure are PW 11 Mukheswar Kalita and PW 12 Nabin Tamuli. As per the evidence of PW 11 he was called by an excise constable to the house of Padmeswar when he had seen Madoi also. Subsequently, he entered the house and stood in the main room while the excise staff entered in the kitchen and when they came out, an excise constable was seen holding a 'Topla' (a packet) which contained some black substance which was said to be opium. He was informed that the packet was found inside the fire -place in the kitchen. It is apparent from this that PW 11 had himself not seen the recovery. PW 12 another search witness admitted that he remained in the vehicle which had taken the excise staff to the house of Padmeswar and he had not entered the house. He was, however, informed later that a packet containing opium was recovered from that house.