EMPEROR Vs. BANARSI

JUDGEMENT

(1.) This is an appeal by Government against an order of acquittal by a first class Magistrate, dated the 31 of August, 1923. The whole case turns upon the question of unlawful possession of some cocaine found in a certain house in the city of Allahabad. There has been a previous prosecution and an acquittal. One Bishan, together with his sister Musammat Kishan Piari, and Ganesh, who is believed to be his maternal uncle, were charged with the wrongful possession of this cocaine. In that case the present defendant, one Banarsi, who is said to he 60 years of age and is also believed to be related to Bishan, although he strenuously denies it, gave evidence for the defence, and his statement on that occasion has been used against him in this case. In the order of acquittal, the Magistrate who tried the previous case directed that proceedings against Banarsi should be instituted. It was natural, therefore, and right that the case should be heard and disposed of by another Magistrate. In our view the appeal must succeed on the ground that the facts proved against the defendant are particularly conclusive, and that the Magistrate unfortunately instead of taking a broad, common sense view of the facts, which could, not be explained except upon the hypothesis of guilt, has cut up the case into small pieces which he has disposed of one by one by a series of technical fallacies.

(2.) The matter is perfectly simple. In this house No. 70, Sarai Mir Khan, in the city of Allahabad, resides from time to time a varied assortment of individuals whose relationship to one another, whether by blood or by matrimony or by contract of tenancy or otherwise, seems to be wrapped in some obscurity. A prominent person known in connection with this collection of people who frequent this house is the person Bishan who was acquitted. He is said to be a junior member of the family and the man who handles the wealth, and the evidence in this case of one of the occupants of the house is that Bishan was well to do. The city excise authorities had reason to suspect that the money was not unconnected with illicit traffic in cocaine and that the house No 70 belonged to Bishan. As the Inspector very fairly said in this case when Banarsi was on trial, everything pointed to the house being in the possession of Bishan. A raid was made upon the house and the result of the search was that in one room cocaine was found in a coat hanging up on a peg on the wall, and in another room was found a locked wooden box which, in addition to containing other things contained a small tin box in which cocaine was also discovered. There were a pair of scales also in the room and an empty phial, both of which articles, innocent in themselves, might have had no connection with cocaine. But, on the other hand, there is no evidence of any legitimate trade going on, or of the existence of any material with reference to which either a phial or scales would be useful except this cocaine, and as this was a house in the crowded part of a crowded city, the reasonable presumption is that traffic in cocaine, that is to say, in selling cocaine in small quantities, as we say, by retail, was going on in that place to persons who wanted it in small quantities. That is to say, the indications are in favour not of a store for safe keeping and removal to some other place on a large scale, but rather in favour of a small trade going on with retail customers. We attach great importance to that feature of the case, because to enable it to be done secretly and to evade any possible search, it would be necessary to have the stuff well hidden and yet in an accessible place. It has this further bearing upon the case that it follows that if that inference is correct, it was impossible for a trade of that kind to be going on from day to day without the knowledge of the occupants who had access to the room where the cocaine was discovered. It also follows that mere temporary absence for three or four days from the premises would by no means afford an answer, which it might otherwise do in the case of cocaine suddenly introduced into the building of a person charged with guilty possession.

(3.) The present accused gave evidence on the charge against Bishan. The learned Magistrate has excluded that sworn statement of Banarsi's altogether as inadmissible, and he has made a terrible mess of the sections applicable. The evidence was not tendered as a confession or as an admission of guilt, but as a statement of fact by the accused himself amounting to an admission of a very relevant fact connected with the discovery of the cocaine, namely, the occupation of the house and the possession of a locked box. The evidence was properly proved by bringing the previous statement on the record of this case, and also by the direct testimony of the Inspector, and the Magistrate entirely misunderstands both the purpose for which it was tendered and the plain meaning of Section 21 of the Evidence Act which made it admissible.