MAHOMED RAFIQUE Vs. KING-EMPEROR

JUDGEMENT

(1.) The appellant before us named Mahomed Rafique has been convicted under Section 46, Act V of 1909--The Bengal Excise Act-and has been sentenced to undergo rigorous imprisonment for a period of one year.

(2.) The facts are as follows:--On the 19 January 1925, the appellant, along with two others, was arrested by Excise Sub-Inspector, Probhat Chandra Sen Gupta at Premises No. 356, Upper Chitpur Road, in Calcutta. On a search being made, several quantities of cocaine were found to be in possession of the persons arrested. Thereafter they were sent up for trial for having been in illicit possession of cocaine without a license in contravention of the provisions of Section 46 of the Bengal Excise Act. The trial, so far as the present appellant is concerned, commenced on the 20 January 1925, before Mr. Keays, Additional Chief Presidency Magistrate. It was alleged that the appellant had in his possession cocaine in a phial which was found in a chula under a wooden taktaposh in his shop, and it was further alleged that 83 packets of cocaine were found in a bamboo pipe hidden between two taktaposhes in front of the accused's shop, but the charge against the appellant was, as far as we can make out from the record, in respect of having been in illicit possession of 155 grains of cocaine without license. The trial went on from the 20 January 1925, to the 21 of July 1925, when Mr. Keays, the trying Magistrate, proceeded on leave. On that date he recorded the following order in the order sheet: "I am going on leave. I had written my judgment (which I append to the record) on the 3 July and I had only to sign it. The accused has absconded. I leave the judgment for my successor to deal with as he thinks fit." In the margin there is a note by Mr. Keays successor, Mr. A.Z. Khan, in these words: judgment kept with me Sd. A.Z. Khan 21-7- 25."

(3.) On the 22 August, 1925, it appears that the accused who had been absent since the 11 July 1925, surrendered before the Magistrate, Mr. Khan, and filed a petition stating that he did not want a de novo trial. Thereupon the learned Magistrate, Mr. Khan, recorded the following order in the order sheet: Mr. Keays, Additional Chief Presidency Magistrate on leave, who tried the case, has left a written judgment, before he made over charge to me, undated and unsigned. I am signing and dating that judgment and pronouncing it. Accused is sentenced under Section 46, Act V of 1909, to one year's rigorous imprisonment. Cocaine to be destroyed."