BHAIRULAL Vs. STATE

JUDGEMENT

(1.) THIS is an application for revision by the two accused Bhairulal and Samandarsingh who were convicted by the learned 1st Class Magistrate, Bhawanimandi under Section 9 of the Opium Act and sentenced to six months' rigorous Imprisonment each and their conviction and sentence have been upheld by the learned Addl. Sessions Judge, Jhalawar on appeal.

(2.) THE case for the prosecution was that Fayyzuddin Head Constable Police Chowki Pach-Pahar with two constables went to the jungle on the border of Madhya Bharat in the night between the 9th and 10th October, 1953 to check and hold up some stolen oxen which were to pass by that way. At about mid-night both the accused were seen passing that way, Samandarsingh accused had a cycle with him and Bhairulal had a bag. Both the accused were stopped by the police and on search it was found that the bag which was with Bhairulal contained contraband opium. A seizure memo was prepared and it was attested by two witnesses Fatehsingh P. W. 4 and Kalu Singh P W. 5. Both the accused were challaned under Section 9 of the Opium Act in the court of the 1st class Magistrate Bhavanimandi, The accused denied the charge and stated that they had nothing to do with article in question. They said that the bag was found lying on the ground by the police and an unfounded charge was brought against the accused. Learned Magistrate, however, believed the prosecution evidence and found that both the accused had committed an offence under Section 9 of the Opium Act and sentenced them as mentioned above.

(3.) IN this revision, it has been argued by Mr. D. K. Soral on behalf of the applicants that so for as Samandarsingh is considered, there is absolutely no evidence to show that he was found in possession of the article in question. It was argued that he has been convicted merely on the presumption that as he was related to Bhairu and was seen in his company, therefore, he too ought to be deemed to be in possession, of the article in question. As regards Bhairu it was argued that there is absolutely no evidence on record to show that the article recovered by the police was opium within the meaning of Section 3 of the Opium Act. It was argued that the only witness, who was produced by the prosecution to prove that the recovered article was contraband opium, was Devisingh who had to state that he could not say whether the recovered article was pure or adulterated opium, and who had also to state that he did not chemically examine the recovered article. It was argued that on this evidence, it cannot be held that the recovered article was opium within the meaning of Section 3 of the Opium Act. It was further argued that out of the four witnesses, who were produced to prove the recovery, the two independent witnesses, namely, Fatehsingh and Kalusingh have clearly stated that the so called opium was not recovered from the possession of any of the accused in their presence. They have simply stated that when they reached the spot at the call of the police, they found the bag containing the article in question on the ground. The only witnesses about the recovery are, therefore, the two police employees namely, Fayyazuddin and Ratansingh, who cannot be said to be independent witnesses. It was also argued that it is also doubtful on the evidence on record as to whether the seizure memo was duly prepared.