EMPEROR Vs. ZAWAR HUSSAIN

JUDGEMENT

(1.) This is a Government appeal against the acquittal of one Zawar Hussain, on a charge tried by a First Class Magistrate of Saharanpur, for "possessing cocaine" without lawful justification. No lawful ground for the possession, if any, was suggested.

(2.) The case presents another example of the sort of travesty of justice of which this Court has had too much reason to complain of late in magisterial proceedings. The case lies in a small compass. The first witness was called on the 27 of March, within eight days of the date of the alleged office. The last witness was not called till about the 7 of July, and the judgment was delivered on the 31 of July, after what must have been an enormous expenditure of money and magisterial time. We have been compelled to go through amass of irrelevant matter, and a judgment consisting of twelve closely printed pages of wearisome discussion of superfluous detail, and laborious reflections on side issues, of no importance to any one, in which the real issue has been almost total obscured. 2. The prosecution made the initial error of trying to establish that Zawar Hniain lived on the premises; an issue which was bound to fail and which undoubtedly accounts for much of the waste of time for which the Magistrate was not responsible. The Magistrate, in the end, decided that Zawar Hussain did not live on the premises, and that he had no knowlege of the cocaine which was seized. As to the former of there issues, it is clear that he was right. Act to the latter, we differ from the decision. We think that it is clearly established that Zawar Hussain used the house for concealing cocaine, and that if he had been charged under Section 60A, as amended by Act IV of 1919, he must have been convicted. The Government Advocate asked for a conviction under this section, but the accused was not charged under it, nor was this Court asked in the notice of appeal to alter the charge. Mr. Dillon, who represented the accused and argued his case with great force and fairness, objected on substantial grounds of hardship to this course. We are of opinion that we ought not now to try the accused on a fresh charge.

(3.) The question, therefore, which we have in decide is, whether the finding that Zawar Hussain was not in possession of the cocaine seized was one at which the Magistrate has arrived against the weight of the evidence. 1