ISMAIL Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by the Local Government against the acquittal by the Sessions Judge of Allahabad of Ismail and Ishaq, sons of Husain Bakhsh and Abdul Razak, son of Abdul Ghafur, on a charge under Section 60(a), Act 4 of 1910, Excise Act. Ismail and Ishaq are brothers and Abdul Razak is their cousin. The three men had been living together for a considerable time in a house at Gulab Bari, and carrying on business together. On 2 April, 1928 their house was raided by the police and ten small and one large packet of cocaine hydrochlorate were found in a room in which they were all present. The cocaine was enclosed in paper, and the packets were found partly submerged in water, having been thrown into a degchi a few moments before their discovery, as was evidenced by the fact that the cocaine which had come in contact with water had not dissolved. The only explanation given at the moment was a general statement that the cocaine must have been planted there.

(2.) Before arriving at the house Mr. Measures, Superintendent of Police, had his party searched as also the search witnesses, and was himself searched. Later when the Magistrate was examining the premises in the presence of the three accused, they set up a story that they saw a constable, who entered with others by another door, throw the packets of cocaine into the degchi. Apart from the difficulty of this feat, there is the significant circumstance that they did not at once denounce the constable in the presence of Mr. Measures, when each of them had seen him do it with their own eyes. The search was concluded without this most important circumstance ever having been mentioned to Mr. Measures or any body. The only inference we can draw is that it never happened but was an invention thought out afterwards.

(3.) Section 60 runs as follows: Whoever, in contravention of this Act... (a)... possesses any excisable article... shall be punished, if the offence is committed in respect of cocaine, with imprisonment which may extend to two years or with fine or with both.