SARKAR Vs. HANS RAJ

JUDGEMENT

(1.) THIS is a revision by the Sarkar against the order of the learned Sessions Judge, refusing to enhance the sentence. There were too accused in this case. Hans Raj and Bhera and according to the prosecution they were found in possession of illicit opium weighing 304 Tolas and convicted and sentenced by the learned Magistrate of the Trial Court under S. 5 (f) of the Marwar Excise Act to a fine of Rs. 1000/-or three months' rigorous imprisonment in default. The revision petition by the Sarkar in the court of the learned Sessions Judge failed on the ground that the accused were the servants of some body who was the real owner of the opium found in their possession and that no useful purpose could be served by sending the servants to jail when their master could not be traced and prosecuted. THIS revision was directed against both the accused Hans Raj and Bhera but in as much as Bhera is not traceable although a warrant has been issued against him several times, the learned Government Advocate has chosen to press the case against Hans Raj only and reserved to himself the liberty to file another revision against Bhera later if he becomes available.

(2.) NOW so far as Hans Raj is concerned, the prosecution case against him is that some directions had been given to P. W. 3 Bhaboota Ram a liquor licensee in Jodhpur by Chau-dhari Gordhan Singh, Assistant Excise Commissioner to report cases of illegal possession of excisable articles as and when they come to his knowledge or notice. On 2nd of October 1945 Hans Raj is alleged to have come into the trap and offered to sell to Bhaboot Ram a certain amount of illicit opium. Bhaboot Ram to all intents and purposes is a liquor licensee only and there is nothing on the record to show that it was known in shady quarters that he was also doing illicit trade in the purchase and sale of other excisable articles at the counter. Therefore, there is a gap in the prosecution evidence as it does not attempt to explain why should Hans Raj go to a liquor shop with an intention of selling illicit opium there. Be that as it may the prosecution case is that Bhaboot Ram directed him to come to his shop at 10 P. M. the next day. Meanwhile he informed Chaudhari Gordhan Singh and the Excise Inspector Kan Singh of the above incident. The later arranged to be present at the shop at the fixed hour allong with Motbirs. It is stated that at 10 O'clock or soon after Hans Raj came and also the excise party on a signal being given by Bhaboot Ram. A lantern was hanging in the shop and the signal was that as soon as Hans Raj arrived, the lantern was taken down. On their arrival, they searched the person of Hans Raj and recovered from him 2 tins contain-ing 193 Tolas of opium, and an iron balance, 4 weight measures and. Rs. 10/-in cash. The accused was thereafter challaned under S. 5 (f) of the Excise Opium and Drugs Act in the court of 1st Class Magistrate Jodhpur. The prosecution examined 6 witnesses consisting of 3 Motbirs, namely, P. W. 2 Ganpat Singh, P. W. 4 Poosaram, P. W. 6 Mohan Singh besides P. W 1 Kan Singh, P. W. 3 Bhaboot Ram, the liquor licensee, and P. W. 5 Gordhan Singh. The accused denied the recovery and pleaded not guilty and also produced 4 witnesses in defence and put forward a story with which, in the view that we are taking in this case, it is not necessary to deal.