NARESH CHANDRA DAS Vs. EMPEROR

JUDGEMENT

(1.) These two rules were issued by this Court on the petition of the two accused persons calling upon the Deputy Commissioner of Lakhimpur to show cause "why the order of conviction and sentence complained of in the petition should not be set aside or such other or further orders made as to this Court may seem fit and proper." The petitioner in Criminal Revision No. 595 of 1941 is Naresh Das who has been convicted under Section 9(c), Opium Act, and sentenced to undergo rigorous imprisonment for six months. The petitioner in. Criminal Revision No. 646 of 1941 is Sundar Singh who has been convicted under Section 9 (a), Opium Act, and sentenced to undergo rigorous imprisonment for one year. The prosecution case is that on 5 September last at about 10.30 p. m. the officer-in-charge of Tinsukia Police Station B.B. Dam, happened to be on patrol duty at Bansbari on his way back from Panitola. He saw taxi cab No. A.S.L. 168 proceeding towards Tinsukia from the direction of Dibrugarh. According to previous information he suspected that opium might be carried in that taxi cab. Accordingly he returned to the thana and proceeded in the direction of Makum accompanied by A. S. I., G. C. Das, and two constables. On the way he met one Bangshi Nai and asked him to follow with his oar. The officer-in-charge on arrival near Khemani Rice Mill which is situated near the Trunk Road leading to Makum noticed the taxi cab in question in the mill premises. Meanwhile Bangshi Nai arrived with his car with one Lachmi Narayan. The officer-in-charge told the members of his party that he would search the taxi for opium and left A. S. I., G. C. Das, near the car with a constable and Bangshi on the Trunk Road at some distance to the east of the gate of the Rice Mill and he himself proceeded with Lachmi Narayan and the constable Gyasuddin towards the gate to stop the car as it would come out. In the meantime the taxi started and came out of the gate and proceeded towards Makum (eastward). The officer raised his hand and shouted out to the driver to stop the taxi--but disregarding the signal, it ran ahead. The officer then shouted out to the A. S. I. to stop the car. The A. S. I. and the constable who was with him stood on the middle of the road, shouted out to the driver and raised their hands by way of signalling to stop the car. As the car did not stop they placed their lathis across the road but the driver of the car ignoring these signals and obstructions drove ahead though one of the head lights was smashed in consequence.

(2.) The officer-in-charge then got into Bangshi's car with A. S. I., G. C. Das, and chased the taxi which was being driven at a break-neck speed and the back light could only be seen from a distance of 2 1/2 miles. The officer arrived at Makum and met one Darjey Lama and his brother Ganga Bahadur on the road and from the information furnished by them traced the taxi in Durgabari Lane which adjoins the Trunk Road. Accused Naresh was found in the car. He was questioned by the police officers as to whether he with another had carried opium in his taxi cab. After being repeatedly questioned he made a statement. Then on the information given by Darjey Lama, a search was made for the second man and accused Sundar Singh was found sitting on the varandah of a sweets shop. Sundar Singh was questioned and confronted with Naresh and in consequence he stated that he had thrown the opium at Sukan Pukhuri and offered to show it. Then he led the police party to Sukhanpukuri where a gunny bag containing the opium was discovered lying under water on the road side. This gunny bag was found to contain 16 cakes of opium weighing 8 srs. 3 chataks. The opium was seized and both Naresh and Sundar Singh were sent up under the Opium Act. The charge against Sundar Singh is that he possessed the opium, and that against Naresh is that he knowingly permitted his taxi cab to be used for the transport of opium by accused Sundar Singh, which is an offence under the Opium Act. The exact charge framed against Naresh Chandra Das, the petitioner in Criminal Revision No. 595 of 1941, ran as follows: That you on or about the 5 day of September 1940 at Sukan Pukhuri being the owner or occupier of taxi cab No. ASL168 knowingly permitted it to be used for transport of opium by accused Sundar Singh, which is an offence under Section 9, Opium Act, and thereby committed an offence punishable under Section 9C, Opium Act, as amended in 1933.

(3.) The accused Naresh Chandra Das pleaded not guilty to this charge and denied that he made the statement attributed to him to the police. He did not, he said, knowingly or otherwise carry any passengers with opium in his taxi. Both the trying Magistrate and the learned Additional Sessions Judge on appeal could refer only to the conduct in refusing to stop his taxi though signalled by the police to do so, as the evidence against this accused person. Beyond this no other evidence establishing his guilt could be pointed out in this case. His conduct no doubt raises a strong suspicion against him. But conviction on a mere suspicion, however strong, cannot be supported. We have gone through the entire evidence in this case and, in our opinion, the charge against this accused has not at all been established by the evidence on record including his suspicious conduct. The result is that the rule in Crim. Rev. Case No. 595 of 1941 is made absolute. The conviction of accused Naresh Chandra Das and the sentence passed against him are set aside and he is acquitted. The order of confiscation of taxi cab No. ASL 168 under Section 11, Opium Act, is also set aside. Accused Naresh Chandra Das should be set free forthwith and the taxi cab No. ASL 168 should be restored to him immediately. As regards Sundar Singh, the petitioner in Cr. Rev. Case No. 646 of 1941, the charge framed against him ran as follows: That you on or about the 5 day of September 1940 at Sukanpukhuri possessed 8 seers 12 chataks of opium and thereby committed an offence punishable under Section 9 (a), Opium Act.