1. This is a petition Under Section 439, Criminal P.C. by one Bholanath Sarmah who was convicted by a 1st class Magistrate of Golaghat Under Section 9 (a), Opium Act (Act I [l] of 1878) and sentenced to rigorous imprisonment for one year. The petitioner's appeal to the Sessions Judge, Upper Assam Districts, against the conviction and sentence was dismissed on 29th January 1949.
2. It appears that on 1st November 1947, the house of the petitioner was searched by the Excise Inspector of Golaghat in the presence of certain witnesses. In the course of the search, a cigarette tin containing 2 teals of opium was found lying on a projection (chung) in the living room (maralghar) of the petitioner. Another lot of 32 tolas of opium waa found in a wooden box wrap, ped up in a newspaper and kept under a wooden seat (barpira) in the petitioner's bed-room. Near the wooden box were found a case containing a weighing balance, an eight anna silver coin, a four nana silver coin and 20 rati weights. These were taken possession of by the Excise Inspector and in due course the accused was sent up for trial,
3. The appellant's case was that he was not aware of the fact that opium was kept in his house; every night he slept at the Gurjangaon Co-operative Store some 2 furlongs away from his house; a girl had come to his house as a guest and had stayed for the night insinuating that the excise party, with her assistance, had brought the opium to his house.
4. The learned Sessions Judge carefully examined the defence of the accused and, on the strength of the evidence of P.W. 3, Fatik Hazarika, Assistant Secretary of the District Congress Committee of Golaghat, who had accompanied the Excise Inspector, came to the conclusion that the defence story of planting the opium was incredible, The learned Sessions Judge observed that P.W. 3 had no motive for giving false evidence against the accused, nor had he any motive for planting the opium in the accused's house; there was no enmity between the accused and P.W. 3.
5. We think the circumstances of this case militate against the suggestion of the defence that the opium found in the house was not there before the arrival of the girl guest who mysteriously disappeared, or before the arrival of the excise party. It is not reasonable to suppose that P.W. 3, a thoroughly disinterested witness, would agree to implicate an innocent person by resorting to criminal association with an Excise Inspector, such as is suggested by the defence. The finding of opium in 2 different placea also militates against the defence version. Indeed we think the finding of a small quantity (2 tolas) of opium on a projection in the living room of the petitioner tends to suggest that this small quantity was separated from the bulk kept in. Bide the wooden box with a view to Eale. If the defence version of foisting the opium is rejected, as we do the knowledge of the presence of opium in his house can reasonably be attributed to the petitioner, the more so when there is evidence to suggest that the opium found in the house of the accused was in all probability being offered for sale. The presence of weighing scales and small weights used for selling small quantities of opium lends support to this probability.
6. It is contended on behalf of the petitioner that, assuming the circumstances of this case tend to suggest that opium was brought to the house of the petitioner for the purpose of sale, it has not been established by the prosecution that it wa3 brought by the accused or that the accused had knowledge that it had been brought to his house for that purpose. Now, it appears that the family of the accused consists of his wife, his 2 minor daughters and 2 minor sons, We think it would be quite a proper inference to draw, having regard to the substantial quantity of opium found in the house, that if this opium was brought to the house and deposited in the bed-room of the petitioner, by a member of the family of the petitioner or a smuggler it was brought there with the petitioner's knowledge. It is reasonable to suppose, in view of the incredible explanation of the petitioner, that 34 tolas of opium were either unlawfully purchased by the petitioner or a member of his family or smuggled into the house. In either case, knowledge of the presence of the opium found in the house of the petitioner can reasonably be attributed to him.
7. Section 10, Opium Act of 1878 lays down:
In prosecutions Under Section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily, is opium in respect of which he has. committed an offence under this Act.
The account by which the petitioner attempted to explain the presence of opium in his house has been disbelieved by the Courts below and we think, for good reasons. As we have stated in the earlier part of our judgment, in the facts and circumstances of this case, knowledge of the presence of opium in the bed-room' and the living room can be properly attributed to the petitioner. Under Section 10, Opium Act, the petitioner was then required to account satisfactorily for his possession, which he has failed to do, and his failure renders him liable to a conviction Under Section 9 of the Act.
8. In Emperor v. Hamid Ali, 87 cal. 24 : 5 I.C. 656 : 11 Cr.L.J. 147, Sir Lawrence Jenkins C. J. and Oaspersz J. observed;
With regard to Serajuddin, the case is different, for he was the owner of the boat, and I do not understand the learned Magistrate, by whom he baa been acquitted, as suggesting that the opium was not actually found in the boat. On the evidence, I bold as a fact that the opium was in the boat, and the boat being his, I hold, in the circumstances of the case, that ho was In possession of the opium. Then we have to consider the terms of Section 10 of the Act which provides that 'in prosecutions Under Section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily, is opium in respect of which he has committed an offence under this Act.' The learned Magistrate seems to have thought that the aconsed parson, that is to say, Serajudding, had accounted satisfactorily. What he aays is this: 'This' accused admit that the artioles seized by the Salt Officers wore found in their boat. But they explained this fact by saying that the fourth man (Ainudding) got into their boat a Hatia as a passenger with these artioles, and that they did not know that there was opium among tlrem.' There is no evidenceol any witnesses to this efieot, but some of the accused . have at different times made statements suggesting this. On the other hand, we find that the immediate statement made by one of the accused is in direct confliot with it, because his version is this, 'We are four co-workers in the sampan. Two men, Serajudding and Ainuddin, carry on business, sell articles;' and that is manifestly inconsistent with what commended itself to the Magistrate as satisfactorily accounting for the opium. But more than that, we have the very significant circumstance that when the boat was boarded, Serajudding threw overboard a handi, which was recovered and in the process of recovering which, it is sworn, a piece of opium dropped out. Even if this be treated as problematical, it is established that when the handi was brought into the boat and examined, it was found that it contained a quantity of opium, This is very significant and goes to show that the account now given by Serajudding ia one which cannot be accepted. In the circumstances, I hold that it has been established by the proeeoution that Serajudding did possess opium, and he has been unable to account satisfactorily for his possession.
These observations of the learned Judges of the Calcutta Sigh Court are applicable in all their import to the facts of the case before us.
9. The learned advocate for the petitioner has relied upon a decision of the Full Bench of the Lahore High Court reported in Emperor v. Santa Singh A.I.R. (31) 1944 Lab. 339 : 2161.0. 161 : 460r, L.J.I, given upon a reference made by two Judges of that Court. The points referred to the Full Bench are set out in the judgment of Harries C. J, We have carefully read the facts of that case bearing in mind that each case has to be deoided on its own merits. The learned Judges in the Lahore case were dealing with a case under the Arms Act, which apparently does not contain a section similar to Section 10, Opium Act, and were, therefore, invited to consider the application of Section 106, Evidence Act. The case in point, in our opinion, is the one reported in Emperor v. Hamid Ali 37 cal. 24 : 5 I.C. 555 : 11 Cr.L.J. 147.
10. The learned advocate for the petitioner also relied upon a decision of the Calcutta High Court reported in G. C. Baker V. Emperor A.I.R. (17) 1930 cal. 668 129 I.C. 184 : 32 Cr.L.J. 245. It may be conceded that 'possession' under the Opium Act must be conscious possession. Upon the facts of that ease, the learned Judges came to the conclusion that the accused was not in conscious possession of the opium, being largely influenced by the fact that the Goanese boy who looked after the particular cabin had mysteriously disappeared. The learned Judges thought that the importance of the disappearance of the Goanese boy was that it gave rise to a doubt whether the boy could have been the culprit and whether it was possible that the accused was, as he claimed, ignorant of the fact that the opium was in his cabin. On the facts before us, we are not prepared to disturb the finding of the court below that the accused was conscious of the presences of the opium in his house, a finding based on inferences properly drawn from the circumstances of the cage. As we have observed, the presence of the weights and the balance and the setting apart of a small quantity of opium in a cigarette tin from the bulk of the opium which was kept in a wooden box, indicates that the opium found in the petitioner's house was in all probability intended for sale, and this circumstance tends to establish, in our opinion, beyond all reasonable doubt, the fact that the accused was in conscious possession of the opium.
11. In this view, we decline to interfere with the conviction and sentence passed upon the petitioner, and dismiss the revision application. Revision dismissed.