AMBALAL Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by Mr. Sukhdeo Mirdha, Sessions Judge of Partapgarh, for quashing charges framed against the petitioner by the trial Magistrate under secs. 409 and 201 of the Indian Penal Code.

(2.) THE relevant facts leading to this reference are that one Shri Virendra Singh, Opium Inspector, took possession from the Rodi of Guldad Khan of village Devaldi some opium contained in a handi. THE opium is alleged to have weighed about 4 seers 4 chhataks. Some opium is also said to have been recovered by the officer from the possession of one Salar Jung which was also contained in handi. Both these handis were duly sealed by the Excise Officer and were kept at the Police Station, Arnod in the Malkhana for which a receipt was granted to the officer by B. J. Habib Khan. At the time of the recovery of opium contained in those handis, samples were also taken for examination by the public analyst and according to the report of Public Analyst it was found that the substance contained in the handis was opium within the meaning of the Opium Act. All this took place in March and April, 1956. In the meantime, it appears that one Sher Ali was put up for trial before the Sub Divisional Magistrate, Pratapgarh for offence under sec. 9 of the Opium Act under similar circumstances. A prayer was made in the course of the trial for the accused that the contents of the handis, which were alleged to have contained opium, should be examined, but when the handis were opened, it was found that there was no opium in them. This aroused the suspicion of the police which led to an examination also of the contents of the handis which were said to have been recovered from the possession of Guldad Khan and Salar Jung and were kept in the Malkhana. THEse handis were also found not to contain opium but some rubbish and molasses. On the strength of an inquiry by the Anti-Corruption Department, it is alleged that the petitioner along with Habib Khan and Amba Shanker as also with the help of Kalu Luhar took out the handis from the Malkhana of Police Station, Arnod, between 18th and 24th November, 1956, and having removed the opium contained therein substituted rubbish and gur in its place and then putting seals thereon restored the handis to the Malkhana. THE Magistrate, who took cognizance of the case on the police report, framed charges against the petitioner under sec. 409 and 201 of the Indian Penal Code.