MOHAMMAD BASIR Vs. EMPEROR

JUDGEMENT

(1.) Two persons, Mohammad Bashir and Bassan alias Bashir, were convicted by a Magistrate of the First Glass under Section 60(a), U.P. Excise Act and sentenced to two years rigorous imprisonment and a fine. On appeal their convictions were maintained by the learned Sessions Judge of Cawnpore. They have applied in revision to this Court and their case has been presented before me by Mr. Kapil Deo Malaviya and he has asked me to consider the cases of the two applicants Separately.

(2.) It appears that Mahammad Bashir is the occupant of the house which waS raided at 6 p.m. on 8 December 1930. Some cocaine was found in his house at three or four different places. It is quite clear that the Excise Inspector went to the house with his peon without having, taken a warrant from a Magistrate and without having taken a couple of respectable witnesses of the locality. These were irregularities and a great deal has been made by the defence out of these irregularities. It is of the utmost importance that search should be conducted in a, highly regular manner, so that the defence might have no opportunity to question the bona fides of the prosecution. When, the Excise Inspector and his peon reached the house, they found Mohammad Bashir and Bassan in a room. On the approach of the party Mohammad Bashir ran away and the Excise Inspector ordered his peon-to arrest Bassan who was in the room and Bassan was accordingly arrested. The Excise Inspector also told his peon that after arrest Bassan should be brought out the room and the house then chained. The Excise Inspector in the meantime went in. pursuit of Mohammad Bashir and after having arrested him brought him back to the house when he sent for search witnesses. The door remained chained during this time, but the fact remains that for some short time the peon entered that house when he went to effect the arrest of Bassan, and he did so in the absence of any search witnesses. Later on in the- presence of the search witnesses and after the usual formalities the house was searched and as I said before, a certain quantity of cocaine was recovered at various portions of the house.

(3.) The learned Sessions Judge in appeal has been very fair to the defence and has-not attached any importance to the cocaine that was recovered from places where there was a possibility of the cocaine having been planted by an outsider or an enemy, but he has attached a great deal of importance to the cocaine that was discovered in a cupboard, and he has attached some importance to certain pieces of paper that were found lying about in the room and which when sent to the Chemical Examiner were reported to contain traces of cocaine. I myself am not prepared to attach any importance to those pieces of paper, but the cocaine recovered from the cupboard has influenced my judgment to a great extent. I am however told by Mr. Kapil Deo Malaviya that the conviction of Mohammad Bashir is unsound for various reasons. He contends that there was irregularity in the search inasmuch as a warrant was not obtained. He further contends that the search witnesses ought to have been at the spot from the very beginning. Irregularity in a search and the failure to obtain warrant would always afford ground for scrutiny, but, if after close scrutiny the Court comes to the conclusion that an excisable article was recovered from the possession of the accused, then I am of the opinion that the conviction would be sound. This view has been taken by the Calcutta High Court in the case of Romesh Chandra V/s. Emperor A.I.R. 1914 Cal. 456 and by the Madras High Court in the case of Queen Empress V/s. Pukot Kotu [1896] 19 Mad. 349. The same is the view of our own High Court as would appear from the cases of Emperor V/s. Allahdad Khan [1913] 35 All. 358, Emperor V/s. Sayeed Ahmad [1913] 35 All. 575 and the case of Abdul Hafiz Khan V/s. Emperor . There is yet another argument advanced on behalf of the accused.