Rajvi Roop Singh, J.C.
1. This is a revision application by Tejendra Natna against the order of learned Sessions. Judge, Tripura, dismissing his appeal and thereby maintaining his conviction and sentence of offences punishable under Section 9 of the Indian Opium Act and Section 224, I. P. C.
2. The prosecution story, put in brief compass, was that on 5-1-60 at about 5-30 a. m. on the basis of a previous information P. W. 1 Manoj Kanti Dutta, Sub-Inspector of Excise, Agartala, Sadar accompanied by 12 persons including some members of the staff, went to raid the house of the accused Tejendra Nama for the recovery of contraband opium. The raiding party waited on the road and P. W. 2 Nani Gopal Del, Nath, the informer called the accused. The accused came out on the road which was to the eastern side of his house. The Excise Sub-Inspector apprehended the accused and searched his body. He recovered from his person a tin containing contraband opium which on weighing was found to be 30 tolas. It is alleged that while the Excise Sub-Inspector was. preparing a seizure list all on a sudden the accused took to his heels. The Excise Sub-Inspector and Indu Bhusan Deb chased him but the accused assaulted them and made good his escape towards the Pakistan Border.
3. Thereafter the seizure list (Ext. P-1) in respect of the tin containing opium, Ex M-1, was completed and attested by the witnesses and the tin of opium was also sealed and signatures of witnesses obtained thereon. On the same day a complaint was lodged by the Excise Sub-Inspector before the Sub-Divisional Magistrate, Sadar, under Section 9 of the Opium Act and under Section 353/224 I. P. C.
4. The case was transferred to the file of Shri K. P. Dutta, Magistrate 1st Class, Agartala. He examined 3 P. Ws. and framed charges under Section 9 of the Opium Act and under Section 224 of the Indian Penal Code against the accused who pleaded not guilty to both the charges.
5. The defence case in brief is that the tin Ext M-1 said to contain opium was not recovered from the accused, but it was planted by the excise party and that the accused had been falsely roped in this case at the instance of one Banka, an Excise Guard, with whom the accused had previous enmity.
6. The learned Magistrate believed the prosecution story and convicted the accused under Section 9 of the Opium Act as also under Section 224 of the Indian Penal Code. He sentenced him to 6 months R. I. under Section 9 of the Opium Act and 1 month's R. I. under Section 224 I. P. C. he also confiscated the opium seized.
7. Being aggrieved by this judgment the petitioner preferred an appeal to the Court of learned Sessions Judge. The learned Sessions Judge rejected, his appeal, therefore, he has come to this Court in revision.
8. The learned Counsel for the petitioner vehemently urged that in this case it has not been proved beyond reasonable doubt that any opium was seized. from the possession of the accused. He further contended : that the accused has been impleaded falsely at the instance of one Excise Guard, Banka Sarkar, and that a tin containing the opium was planted on the accused person by the prosecution witnesses.
9. The learned Government Advocate, on the other hand strongly averred that by the evidence of the prosecution witnesses the recovery of Opium from the possession of the petitioner has been overwhelmingly proved, therefore the Court should not interfere in the finding of the lower Court. There is great merit in the contention of Government Advocate. In this case regarding the recovery of opium from the person of the petitioner there is a concurrent finding of the two Courts below. It is, therefore not possible for me in revision to interfere with the appreciation of oral evidence, when two Courts below have come to concurrent findings of fact, unless it is shown that their findings are totally perverse. The counsel for the petitioner failed to show me that it is perverse. Any way, the arguments were advanced on this point from both the sides, therefore I shall discuss them.
10. In view of the arguments the point for consideration is whether the prosecution has proved beyond reasonable doubt the recovery of the opium from the possession of the petitioner. In order to prove this fact, the prosecution examined P. W. 1 Manoj Kanti Dutta, S. I. of Excise Department. He has deposed that on 5-1-60 at 5-30 a. m. he visited Bandhaghat-Singtnura area accompanied by Excise staff and armed Police upon a previous information. There they waited till the accused came out of his house accompanied by Nani Gopal Deb Nath. Thereupon, they challenged the accused and apprehended him. He searched the body of the accused and found a tin Ext. : M/1 containing some contraband opium. P. W. 2 Nani Gopal Deb Nath and P. W. 3 Indu Bhusan Deb have fully corroborated the testimony of P. W. 1 Manoj Kanti Dutta. The accused has also admitted the recovery of opium from his person but his contention is that it was planted in his pocket by one Banka Sarkar, Excise Guard, But there is nothing in evidence on the record to show that the said Banka Sarkar had any enmity with the accused. The only evidence that has come on the record is that one Banka Sarkar lived in adjoining villages. From this fact alone no inference can be drawn that Banka Sarkar had any grudge against the accused. Even assuming that Banka Sarkar had any enmity with the accused there is absolutely no reason for the other prosecution witnesses to depose falsely against him. From the evidence this is also clear that SO tolas of opium valued at about Rs. 300/- was recovered and it is not at all likely that any one on behalf of the prosecution would risk confiscation of such a quantity of opium. I, therefore, find that the findings of the learned Magistrate that opium was recovered from the possession of the accused person is correct.
11. The learned Counsel for the petitioner next averred that there are material discrepancies in the evidence of the witnesses as regards the seizure of tin of opium therefore their testimony should not be relied upon, In order to substantiate his argument he pointed out that P. W. 1 has stated that he seized the tin of opium from the pocket of the accused, while P. W. 3 Indu Bhusan Deb has stated that the tin was recovered from the fold of the wearing apparels of the accused. This is not a material discrepancy. Moreover, it is obvious that the witnesses were examined after many months of the occurrence, therefore their memory faded & thereby they could not be precise about it.
12. The learned Counsel for the petitioner further averred that under Section 16 of the Opium Act the search should have been made in accordance with the provisions of the Code of Criminal Procedure but in the present case the search was not made in compliance with the requirements of Section 103, Cr. P. C. In this case neither the personal search of persons was taken who were engaged in the raid nor two or more respectable inhabitants of the locality were called to witness the search. Therefore no reliance can be placed on the factum of the recovery of opium from the person of (he petitioner. In support of his argument he placed reliance on the case reported in State v. Mohan Patra 1961 (1) Cri L J 828 (Vol 62, C N 223) (Orissa), wherein C. C. Das, J, observed as follows:
Before entering house of a person suspected of possessing excisable articles, the personal search of every one to be engaged in the raid must be given. The principle is that there may not be any misapprehension regarding implantation of the article. Failure to carry out this rule must give the defence a very strong argument against conviction, and cause a doubt in cases where the excisable articles found are small in quantity.
13. There is no force in this contention of the learned lawyer for the petitioner. In the instant case-the search was not conducted under Section 103, Cr. P. C. It is to be noted that, Section 103, Cr. P. C. refers only to search of places and does not apply to search of persons. The ruling cited by the lawyer for petitioner does not apply to this case as it refers to a search of a house. In the present case the search of the accused and the seizure of a tin containing opium was effected under Clause (b) of Section 15 of the Opium Act which empowers an Excise Officer to detain and search any person whom he has reason to believe to be guilty of any offence under the said Act and also to arrest him if he is found to be in possession of opium. That being so, no question arises of any compliance with the provisions of Section 103, Cr. P. C. in effecting the search. In support of this I may refer to Aung Kim Sein v. The King AIR 1941 Rang 333, wherein Mosely J. observed that
Section 16, Opium Act, directs that all searches under Section 15, (and under Section 14, which refers to searches of buildings, vessels or places) shall be made in accordance with the provisions of the Code of Criminal Procedure. There is, however, no provision in the Code of Criminal Procedure relating to searches of persons, except Section 102 (3), which refers to persons in or about a place liable to search. Section 103, Criminal P. C. deals with 'places to be searched'; it lays down that two or more respectable inhabitants of the locality in which the place to be searched is situate shall be called upon to witness the search. The inapplicability of this section to searches of persons (Section 15 (b), Opium Act), was pointed out by this Court in Kali Kumar De v. Emperor 28 Cri L J 372 : A I R 1927 Rang 170.
Further even assuming for the sake of argument that Section 103, Cr. P. C. is applicable to the search in question and there has been a failure to call witnesses of the locality by the S. I., that by itself cannot render the search illegal, because it is the settled law that in the words 'respectable inhabitants of the locality' occurring in Section 103 Cr.P.C., the stress should be on the word 'respectable' and not 'locality'. In this case P. W. 3 being a perfectly respectable and reliable person though not belonging to the locality the only thing that can be said is that there has been merely an irregularity which does not affect the legality of the search. On this point I may refer the case reported in Cochan Velayudhan v. State of Kerala : AIR1961Ker8 wherein Govinda Menon, J. observed as follows:
Although the failure to comply with the provisions regulating searches may cast doubts upon the bona fides of the officers conducting the search, there is nothing in law which makes the evidence relating; to an irregular search inadmissible and once it is found that the evidence of the recovery of articles in-the search is reliable a conviction based on such evidence is not invalid on the ground of irregularity in search.
In AIR 1941 Rang 333 the same principle was followed. In this case Mosely J. observed that
Irregularity in the search does not necessarily invalidate the proceedings. It always affords ground for scrutiny, and if, after careful scrutiny, the Court comes to the conclusion that an excisable article was recovered from the possession of the accused, then the conviction is a sound one.
13a. The learned Counsel for the petitioner contended that according to the evidence of P.W. 1 Manoj Kanti Dutta, the raiding party consisted of 12 persons' including Santi Roy, Senior Inspector of Excise, but the prosecution has not examined the said Inspector nor any other independent witness except P. W. 1 who is the Senior Inspector of Excise Dept, P. W. 2 the informer and P. W. 3 who though a member of the public is not at all a disinterested witness and as such a presumption under Section 114 of the Indian Evidence Act should be drawn against the prosecution. There is no substance in this contention. It is true that 12 persons were present in the raid party, but out of them none can be said to be a member of the public. That being so, if the Senior Inspector of Excise or other members of the raid party had been examined their evidence would have been open to challenge on behalf of the accused as being not of independent witnesses. Therefore in view of these facts, no adverse inference can be drawn for non-examination of these witnesses. In this case the sole point for determination was whether the prosecution has been able to prove its case beyond reasonable doubt upon the evidence adduced in this case. In this case, the prosecution examined 3 witnesses and from their evidence it is amply clear that the opium was recovered from the possession of the accused.
14. The learned Counsel for the petitioner further averred that even assuming that a tin was seized from the accused, it has not been proved that the contents of the tin was opium within the meaning of Section 3 of the Opium Act. The contention of the learned lawyer for the petitioner that the contents of tin Ext. M/1 has not been proved to be opium is based on the definition of opium in S. S of the Opium Act, which runs thus:
(i) the capsules of the poppy (papaver somniferum LO) whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom;
(ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport, and
(iii) any mixture, with or without neutral materials, of any of the above forms of opium but does not include any preparation containing not more than 0.2 per cent. of mophine, or a manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930.
The learned Counsel further argued that there being no evidence in the case that the contents of the tin Ext. M/1 seized by the Excise Sub-Inspector have been chemically examined, the same cannot be held to be opium under Section 3 of the Opium Act. In support of his argument he referred to In re R. Ayyanna, 1963 (2) Cri L J 249 (Vol 67, C N 81) : (A I R 1963 Andh-Pra 334) where in S. R. Nayudu J. observed as follows:
For a conviction under Section 9 (a), Opium Act the prosecution must prove (i) that the accused was in possession of a substance; and (ii) that substance was opium falling within one or other of the categories included in the definition of opium in the Act. In all such cases therefore the substance in question must be analysed by an expert competent to determine the composition of the vegetable matter like opium, and is opinion must be available to the Court for its consideration before a concision could be reached as to whether the substance in question is opium or not. This is important because the offence does not involve any mens rea as mere possession is declared an offence.
There is no force in this contention. P. W. 1 Manoj Kanti Dutta has said that the tin contains opium. Both the P. Ws. 2 and 3 have fully corroborated his testimony. Obviously these persons had looked at the contents of the tin, therefore, there is nothing to disbelieve their testimony on this point. In this case there was no chemical examination of the contents of tin but that alone does not warrant an inference that the same was not opium. On this point I may refer the case, The State v. Kaptan Singh reported in : AIR1952All118 . In this case Kidwai J. observed as follows:
Opium in the form of coagulated juice of poppy is so well known in this country being widely used for medicinal and other purposes that anyone can identify it and it is unnecessary to call in an expert to establish its identity. If an Excise Inspector says that certain article is crude opium his testimony cannot be looked upon as merely an opinion of an expert and is entitled to weight as evidence even if no reasons are given for the opinion.
In the instant case from the evidence of P. W. 1 Manoj Kanti Dutta P. W. 2 Nani Gopal and P. W. 3 Bhusan Dev it is clear that the contents of the tin was nothing but opium.
15. The learned Counsel for the petitioner contended that the contents of the tin might be opium but there is no evidence on the record to show that the same weighed 30 tolas as contended by the prosecution. There is no force in this contention. P. W. 1 Manoj Kanti Dutta has stated on oath that SO tolas of opium was found on weighing. There is nothing on the record to disbelieve his testimony.
16. On a consideration of the entire evidence and circumstances of the case I find that the accused has been rightly convicted by the learned Magistrate under Section 9 of the Opium Act.
17. The learned Counsel for the petitioner further contended that there is no reliable evidence on the record to justify the conviction of the appellant under Section 224, I. P. C. There is no substance in this contention. From the testimony of P. W. 1 Manoj Kanti and P. W. 3 Indu Bhusan Deb this fact has been amply proved that at the time of drawing up the seizure list the accused all of a sudden took to his heels and on being chased by them he managed to escape to Pakistan Border.
18. The learned Counsel for the petitioner contended that in the presence of Police Guard how can the accused escape like that. Therefore the Court should presume that this part of the story has been made up to implicate the petitioner. There is no substance in this contention. From the evidence on the record, it is clear that the accused took to his heels all on a sudden, therefore, in view of the suddenness it is not at all unlikely for the armed constables to be taken unawares and not joining in the chase. From the evidence of the prosecution wit-nesses it has been overwhelmingly proved that the accused escaped from the custody of P. W. 1 Manoj Kanti Dutta after his lawful apprehension by the latter. I, therefore, find that the learned Magistrate was perfectly justified in convicting the accused petitioner under Section 224, I. P. C.
19. The last contention of the learned Counsel for the petitioner was that the sentence awarded to the petitioner is excessive, therefore it should be reduced, to the period already undergone. This contention does not carry any weight. The maximum imprisonment provided for under Section 9 of the Opium Act is 3 years and that provided for under Section 224, I. P. C., is two years. In this case the accused has been sentenced to undergo R. I. for 6 months under Section 9 of the Opium Act and for 1 month under Section 224, I. P. C., and the sentences have been ordered to run concurrently. In view of the facts of the case the sentence cannot be called severe; but it errs on the side of leniency.
20. No other point was pressed in arguments.
21. There is no force in this revision petition, which is accordingly rejected. The applicant, who is on bail, will surrender immediately to serve out the sentences.