KAMMU Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by (1) Kammu, (2) Dalchand, (3) Ramchandra, (4) Mohan and (5) Chitarmal, all residents of Bichoor, against the order of the Sessions Judge, Partabgarh, convicting all the five appellants under sec. 395, Indian Penal Code, and sentencing them to two years' rigorous imprisonment, and further convicting Dalchand of an offence under sec. 4/9 of the Opium Act and sentencing him to one year's rigorous imprisonment. The sentences passed against Dalchand under sec. 395, Indian Penal Code, and sec. 4/9, Opium Act, have been directed to run concurrently.

(2.) STATING the prosecution case, I may commence with an anonymous report Ex. P. 24, dated the 4th August, 1961, received by the Superintendent of Police, Chittorgarh. The person sending the report, who will hereafter be referred to as an informant, stated in the report that in their village Devilal Mehta of Bichhor, is a dealer in opium, that on 1st August, 1961, at night, he sent through hired labourers various quantities of opium through four different routes. The opium sent through three routes passed through the village but the opium sent through the fourth route was seized by the Gundas of the village, and that the opium so seized was 28 seers and 8 chhataks. It was further stated that the opium was still lying undisposed and that Devilal was offering Rs. 3,000/- to the persons who had seized the opium and that the opium was likely to be given back to Devilal. The Superintendent of Police was requested to reach the spot and to take necessary action in the matter. It was further stated in the application that the persons who were hired for carrying the opium were Dalu son of Lachman and Bhoora son of Payara, Kumawats of village Bhichor, and that the persons who had snatched the opium were named as Chhitar, Kamukhan, Ramchandra and Mohanlal. It was added that if the Superintendent of Police were to reach the spot he would be successful just as he had been successful in seizing smuggled gold. The informant also hinted that further facts could be ascertained from Raghunath Gujar and others. The Superintendent of Police, Chittorgarh, by his endorsement dated the 7th August, 1961, forwarded the application to the Circle Inspector, Begun, with a direction to make an enquiry and to submit the report. The Circle Inspector Mushtak Hussain P. W. /13 proceeded to village Bichoor on 13. 8. 1961 and recorded the statement of Dalu son of Laxman, Kumawat, which has been brought on record by the defence as Ex. D. 1. On the basis of Dalu's statement, the Circle Inspector found that some 12 days back Dalu and Bhoora were carrying 18-1/2 seers of opium belonging to Mehta Devilal from the village Bichoor to the well of Kajod 2 hours after the sun set. In the way the accused Dalu S/o Jagannath, Ramchandra S/okashiram,brahmins,kammus/o Gafoor, Mohan S/o Mangilal Kumar and Chhitarmal S/o Moda Kumar of Bichoor, who were armed with guns and lathees encircled Dalu and Bhura and after putting them in fear of death or instantaneous hurt relieved them of the opium on the well of Mulia Mali and thereafter they retained the opium with them without license. He accordingly sent first information report Ex. P. 17 to the Police Station, Nandwai for registering a case. The Circle Inspector at the same time started investigation. During investigation the accused Balchand gave information to the Circle Inspector which was recorded by Kanhaiyalal, Station House Officer, Police Station, Nandwai (P. W/11) at the dictation of the Circle Inspector. That report is Ex. P. 2. In consequence of this information and at the instance of accused Dalchand 23 seers 8 chhataks of opium was recovered from a dilapidated and deserted house belonging to Birdhichand (P. W/12 ). The police further recovered some quantity of opium from a chabutra putside the house of Kammu. After completion of the investigation, the police submitted charge sheets against all the appellants under sec. 395 I. P. C. and sec. 49 of the Opium Act in the Court of Sub-Divisional Magistrate, Begun. The Sub Divisional Magistrate, after enquiry, committed all the five appellants for trial to the court of session, Partabgarh, for these offences.

(3.) THE Deputy Government Advocate, however, relied upon the evidence relating to the information given by the accused leading to the discovery of opium. THE Sessions Judge in his judgment has referred to this information in the following words