SADLU Vs. EMPEROR

JUDGEMENT

(1.) This is an application for revision by one Sadlu, who was convicted by a, Magistrate let Class, Benares, of an offence under Section 14, Dangerous Drugs Act (No. 2 of 1930), and sentenced to rigorous imprisonment for 18 months and a fine of Rs. 200. His appeal to the Sessions Judge, Benares, was dismissed. It has been found by both the Courts below that the applicant, who was once convicted of a similar offence and sentenced to six months Rule I. in 1932, was in possession of two packets of a substance which has been declared by the Chemical Examiner to be cocaine. The circumstances which led to the discovery were described by the officer in charge of the Benares Kotwali. In consequence of an information received he proceeded to search the premises of the accused. There is a room on the second storey of the applicant's house, which was found to be locked. The Sub-Inspector asked the accused to furnish the key for opening that room. The applicant produced a key from his person, with which the lock was opened. On search being made two packets were found concealed under the bed on a charpoy. These facts, except as regards the manner in which the accused handed over the key to the Sub-Inspector, are not disputed.

(2.) The accused stated in his defence that the room in which the two packets were found did not belong to him but to his brother Mangru, who actually occupied it. He also alleged that the key which he had handed over to the sub-inspector was not on his person but had been sent for by him from his brother, who was at his shop. There can be no doubt that, unless the accused's statement that the room was in the actual occupation of his brother, who was in possession of the key, be accepted, the offence has been brought home to him. He produced two witnesses, who were considered by the trying Magistrate as respectable. They deposed to the room in question being the property of his brother Mangru, to whom it had been allotted at a partition a few years ago. The witnesses however, being outsiders could not say as to whether his brother Mangru actually occupied the room. It is easily conceivable that the room, though allotted on partition to Mangru, continued to remain in the occupation of his brother, the applicant. It is not disputed that the families of both the brothers live in the same premises, and all that was determined at the partition of the joint property was the proprietary title.

(3.) The learned advocate for the applicant has strongly criticized the action of the police in not taking respectable persons residing in the neighbourhood as search witnesses. The trying Magistrate made the following observation on the part of the case: The learned Counsel for the accused attacked the evidence of Monnu and Gopal, the two search witnesses. They have, no doubt, appeared as witnesses in criminal cases before and they are not of proper character to be selected for this purpose. The statement of the Sub-Inspector that he did not select witnesses from the locality as most of the neighbours of the accused are ex-convicts of modak and cocaine offences is preposterous. Evidence has been given to show that many respectable persons live in the immediate neighbourhood of the accused, and it would have been better if the Sub-Inspector had not taken with him persons of doubtful character to witness the search.