CYRIL C BAKER Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against the order of the learned Chief Presidency Magistrate convicting the appellant, Cyril C. Baker, of an offence under Section 9, Opium Act (1 of 1878) and sentencing him to six months rigorous imprisonment and to pay a fine of Rupees 1,000 or in default of payment thereof to a further term of three months rigorous imprisonment.

(2.) The facts are shortly as follows: the appellant is, or was, at the time of the alleged occurrence, Assistant Wireless Operator of the B.I.S.N. Co's "S.S. Edavana," which was due to leave on the night of 23 January or morning of 24 January last for Rangoon and the Straits. On the evening of 23 January at about 7 p.m. a party of Customs Preventive Officers went on board the ship and searched the appellant's cabin, which was an ordinary 2nd class cabin on the lower deck having in it two berths and a settee. The accused accompanied the officers from the top deck and opened the door of the cabin with a key which he produced either from hi3 pocket or from the top of a ledge outside the door of the cabin. Upon that point there was some controversy at the trial. This much however is clear that the door was locked and that it was opened by a key produced by the accused. On search being made twenty-seer packets of opium were found concealed in the covering of the settee and the mattresses of the upper and lower berth. The accused was thereupon taken into custody, and was in due course sent up for trial and convicted and sentenced as stated.

(3.) The defence set up was that the accused knew nothing whatever about the opium and that to use his own expression it was "planted" there by someone else. It was suggested that a Goanesa servant, or "boy", who was employed to wait on the accused and the other wireless operator, was the real culprit, and in support of that suggestion reliance was placed on the fact that this "boy" mysteriously disappeared from the ship on that same evening just about the time of the search, that he was found missing when the ship left next morning, and that he has not since been heard of. To prove this fact an entry in the ship's log (Ex. A) was put in by the defence from which it appeared that the "boy" was entered as having deserted the ship, that a small sum was due to him as wages, and that this and his effects were subsequently made over to the Shipping Master at Rangoon.