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Ahmed Noor Khan and ors. Vs. the State of Assam - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantAhmed Noor Khan and ors.
RespondentThe State of Assam
Excerpt:
- - we do not feel happy to notice all this in a criminal case. 1, who was at the relevant time in naharkatiya circle, was transferred in november, 1966 to doom dooma circle before he could submit the offence report in an important case like this and it was left to p. 1. we had to read it carefully with the aid of counsel, as the learned advocate-general complained that the learned sessions judge has misread, misquoted and omitted to consider material evidence in his judgment -a grievance which we find to be legitimate. 9. when the sessions judge has misread, misquoted and omitted to consider material evidence, as we have found in this case, the high court, in revision, if it is not disposed to remand, as we are not, in an old case like this, will be called upon to undertake the..... p.k. goswami, c.j.1. this judgment will govern all the three criminal revisions arising out of a common judgment.2. accused ahmed noor khan alias nabu khan is convicted under section 6 of the assam opium prohibition act, 1947, hereinafter called 'the act', and sentenced to two years' rigorous imprisonment and to a fine of rs. 2,000/-, in default six months' rigorous imprisonment. his vehicle dli 5860 was confiscated by the magistrate although the learned sessions judge has not adverted to that order in his judgment. accused naresh chandra das is convicted under section 5(a) of the act with a similar sentence. accused suleman munchi is convicted under section 10 of the act with an identical sentence.3. it appears five accused were facing trial after charge namely, suleman munchi, bachan.....
Judgment:

P.K. Goswami, C.J.

1. This judgment will govern all the three criminal revisions arising out of a common judgment.

2. Accused Ahmed Noor Khan alias Nabu Khan is convicted under Section 6 of the Assam Opium Prohibition Act, 1947, hereinafter called 'the Act', and sentenced to two years' rigorous imprisonment and to a fine of Rs. 2,000/-, in default six months' rigorous imprisonment. His vehicle DLI 5860 was confiscated by the Magistrate although the learned Sessions Judge has not adverted to that order in his judgment. Accused Naresh Chandra Das is convicted under Section 5(a) of the Act with a similar sentence. Accused Suleman Munchi is convicted under Section 10 of the Act with an identical sentence.

3. It appears five accused were facing trial after charge namely, Suleman Munchi, Bachan Khan, Ahmed Noor Khan alias Nabu Khan (son of Md. Jahur Khan), Habib Jan Khan and Naresh Das, and the remaining four accused persons namely, Mahavir Prasad Bharatia, Lakhi Kanta Das, Gora Ansari Julay and Bandu Khan alias Jahur Khan were discharged by the Magistrate, as conceded by the prosecution. We, however, do not find any charge recorded by the Magistrate against accused Bachan Khan, nor his statement under Section 342, Cr. P. C. There is also no mention of this accused Bachan Khan in the entire judgment and we have to assume that he has been acquitted because he has not been convicted by name; he may be one of those persons who are 'the other accused persons' acquitted in the case. We do not feel happy to notice all this in a criminal case.

4. Prosecution case is that on 11th September, 1966, on receipt of certain secret information, B. C. Baruah, Inspector of Excise (P. W. 1), went to Duliajan with a number of Excise Officials and the party stayed there at night. Early morning at 3-00 a.m. of 12th September, the party proceeded to Naharkatia. From there, they went to Tinkhong wherefrom additional reinforcement was obtained and reached Umatara Tea garden at about 6 a.m. P, W. 1 was the leader of the patrol and he placed a posse of excise officials to surround the house of accused Lakhi Kania (since discharged). Thereafter, another batch was detailed to surround the residential house of accused Naresh Chandra Das. After that, they proceeded to the grocery shop of Naresh Das and placed some excise constables to surround it. At that time they saw a motor car DLI 5860 in front of the grocery shop. They suspected this car and asked some constables to guard over it. When accused Mahavir Prasad Bharatia (since discharged) was questioned about this car, he could not say anything. The house of Mahavir Prasad which was in the vicinity of the car was also surrounded on suspicion. P. W. 1, with Excise Inspector Mohit Chandra Chang Kakati (P. W. 3) and others, went to the house of accused Suleman Munchi and surrounded the same. They found five guests from Delhi inside the house and they were accused Ahmed Noor Khan alias Nabu Khan, accused Bandu Khan alias Jahur Khan (since discharged), accused Bachan Khan (since acquitted), accused Gora Ansar Juley (since discharged) and accused Habib Jan Khan (since acquitted). Then, in presence of local witnesses, the house of Suleman was searched and found 10 grams and 3 grams of opium at two places, with which recovery we are not concerned in this case. Suleman Munchi and the five guests were then arrested and the party along with them proceeded to the house of Mahavir Prasad Bharatia. After leaving P. W. 3 and some others at Mahavir's place, P. W. 1 proceeded to the house of Naresh Das and Naresh Das was arrested on suspicion 'as being implicated with Suleman'. P. W, 1 states that 'after arrest, on being questioned in presence of witnesses, Naresh Das stated that he has kept opium concealed in a thatch field of Achabam Tea Estate'. Then P. W. 1 with his party took Naresh Das. Suleman, Habibjan to the thatch field of Achabam Tea Estate. There, Naresh Das 'pointed in presence of witnesses to certain pits where opium had been placed'. No opium, however, was found there. P. W. 1 then goes on to say 'when asked, accused Naresh told that he had taken away the opium from there and kept it in the hay store of Mahabir Bharatia, and that he would show it to us. Saying so, he took us back and then brought out the opium from the hay store of Mahabir Bharatia situated near the Umatara estate'. The opium was inside a blacktrunk in 57 half-kilogram packets. There was a biscuit tin with 30 half-kilogram packets and another tin with 17 half-kilogram packets of opium and also another one-kilogram packet. A gunny bag contained three packets of opium weighing 5 kilograms. The entire opium weighed 58 kilograms. All these incriminating things were seized as per seizure list, Ext. 1. The car DLI 5860 was also then seized. The key of the car was produced by accused Ahmed Noor Khan alias Nabu Khan. After all this, Mahavir. Suleman, Naresh Das and all the five guests from Delhi were taken away under arrest to Naharkatiya,

5. Next day, on 13th September, the accused and the car were produced before the Magistrate. The car was examined in presence of Sri M. N. Kar, Magistrate (not examined in this case) and a secret chamber was discovered in the car behind the rear seat. When the secret chamber was scraped, about three grams of opium were found and seized as per seizure list, Ext. 2. A photograph was taken of the secret chamber of the car. The three grams of opium and some papers were seized in presence of Sri M. N. Kar and another witness Horuram Mech, who are not examined in this case.

6. P. W. 1, who was at the relevant time in Naharkatiya circle, was transferred in November, 1966 to Doom Dooma circle before he could submit the offence report in an important case like this and it was left to P. W. 2. Excise Inspector K. Mohan, who relieved him, to submit the offence report on 27th April, 1967, forwarding all the eight accused persons mentioned above along with the ninth accused Lakshmi Kanta Das (since discharged). It appears from the ordersheet of the case of 27th October, 1966 that the seized contraband opium was produced before the Sub-divisional Officer (Executive) and in his presence about one gram of opium, out of the three grams recovered from the secret chamber of the car, and about 250 grams of opium out of the 58 kilograms of opium recovered from inside the haystack were taken out and sealed before the Magistrate for the purpose of sending to the Chemical Examiner at Shillong.

Ext. 4 and Ext, 5 are two reports of the Chemical Examiner proved by P. W. 1 to show that the samples were opium respectively of that found in the secret chamber of the car and of that found in the haystack.

7. The prosecution case is set out above from the evidence of the principal witness P. W. 1. We had to read it carefully with the aid of counsel, as the learned Advocate-General complained that the learned Sessions Judge has misread, misquoted and omitted to consider material evidence in his judgment - a grievance which we find to be legitimate. We also thought it fit, therefore, to read the evidence of all the witnesses in this case.

8. To point out, at this stage, only one or two infirmities in the recitals in the appellate judgment, the learned Sessions Judge narrated that the

samples of opium were sent to Chemical Examiner who by his report dated 31-10-66 opined that the samples were of opium.

We find, this is not correct. There are two reports of the Chemical Examiner, Ext 4 and Ext. 5 dated 14th March 1967 and 4th October, 1967 respectively, and there is no single report of the Chemical Examiner dated 31st October, 1966 as mentioned by the judge. This has to be particularly noted for the reasons which will be apparent when we deal later with the case of accused Ahmed Noor Khan alias Nabu Khan, who is sought to be implicated by the contents of the report of the Chemical Examiner (Ext. 4). Then again, referring to the evidence of P. W. 4, the learned Sessions Judge narrates:

that he has stated that he accompanied the Excise party led by accused Naresh Das, Suleman Munchi and Habibjan to Achabam and again accused persons brought them to Umatara garden wherefrom inside the haystack the contraband opium was recovered as shown by the accused persons.

We have read the very brief half-a-page evidence of Lakheswar Dowrd (P. W. 4), but do not find him to have stated as recorded above by the learned Sessions Judge.

9. When the Sessions Judge has misread, misquoted and omitted to consider material evidence, as we have found in this case, the High Court, in revision, if it is not disposed to remand, as we are not, in an old case like this, will be called upon to undertake the not-too-easy task of poring over the manuscript evidence to do full justice to the case of each individual accused before us.

10. We will take up the case of accused Naresh Das first. We may at the outset deal with the evidence of Peter Nag (P. W. 7), who was the domestic servant of accused Suleman, as his evidence is said to be common against all the accused. He is described by the Sessions Judge as 'technically' an accomplice and that his evidence has 'to be weighed and scrutinised carefully in view of his participation in the earlier removal' of opium from the car. But, we find that the learned Judge has not at all considered the admission of this witness in cross-examination that

when the excise officer took away Suleman, I stayed back in the house. I cannot say where they were taken away. I have seen what has taken place at Suleman's house. I did not go to any other place from Suleman's house.

This evidence directly contradicts his evidence in chief to the effect that

Suleman Munchi, Naresh and the car owner's younger brother took the excise officer and showed opium at Marwari's house and his further answer to a question put by the Court, relied upon by the Judge that 'he saw all this with his own eyes. He has also stated that 'I have deposed to-day as instructed by Baruah Babu'-meaning P. W, 1. We find that this witness, who having first feigned ignorance before the excise inspector and having admittedly not told anybody about this earlier and made the first statement before the Court on 17th December, 1068, more than two years after detection being always during the period in the safe tutelage of the excise inspector, cannot at all be considered as a reliable witness. Besides, as shown above, he stands self-contradicted. If the learned Sessions Judge had carefully read his evidence, he would have no judicial alternative than to reject his testimony as untrustworthy.

Further, the evidence of P. W. 7 stands alone and is absolutely uncorroborated. The two circumstances relied upon by the learned Judge for acceptance of his evidence, observing that his 'acceptance is strengthened by existence of certain circumstances' are not at all of the nature of legal corroboration of evidence which the Court looks for in the case of such witness, even assuming he is not thoroughly unreliable as found by us. The two circumstances mentioned by the learned Judge are, firstly, that relating to three grams of opium in the secret chamber about which there is no proof as will be shown below and that about the witness going to Achabam which is not corroborated by any other witness and the pits at Achabam are no corroboration of his evidence of visit to Achabam. P. W. 7 could speak about the pits after two years even without visiting Achabam thatch field. We, therefore, keep his evidence out of consideration in this case.

11. The learned Sessions Judge seems to rely upon the evidence against accused Naresh Das to the effect that he made a statement to P. W. 1 and took the excise party to Achabam thatch field where certain pits, not opium, were pointed out by him. He seems to have further relied upon the fact that the accused stated that he has removed the opium and kept it concealed in a straw godown of Mahavir Bharatia, led the party there and brought out the opium packets weighing 58 kilograms which were immediately seized in presence of the witnesses. We have, therefore, to see whether these facts relied upon by the learned Judge are established on the evidence on record and whether there is any serious infirmity in the learned Judge in dealing with the evidence and in reaching the above conclusions against the accused.

12. Section 27 of the Evidence Act is clearly an exception to Sections 25 and 26 thereof. By Section 27, when any fact is deposed to as discovered in consequence of information received from an accused person in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. There is no doubt that an excise officer, exercising powers of entry, search, seizure, arrest and investigation of offences under the Assam Opium Prohibition Act, is a 'police officer' for the purpose of Section 27 of the Evidence Act, and we hold accordingly.

13. The rigor of the ban against confession under Sections 25 and 26 of the Evidence Act is lifted under the provisions of Section 27 which now makes so much even of a confession of a person in police custody admissible, provided that 'so much' relates distinctly to the facts discovered 'in consequence' of the said information. By the fact discovered in consequence of the information, the information acquires the hall-mark of truth which is what the Court administering justice always seeks to reach.

14. Accused Naresh was already in custody of the excise officer and thereafter is said to have made the statement, following which the excise party proceeded first to Achabam thatch field and then, on receipt of further information from the accused, to the godown wherefrom the opium was produced by him. The statement of the accused was not recorded by P. W. 1. He only deposed with reference to oral statements made by the accused. Such oral statements are not barred under Section 27, if otherwise these are admissible.

15. Let us find out what information emanated from accused Naresh. What are the facts discovered in consequence of those informations? And above all whether the evidence, implicating Naresh in this behalf, is dependable if all material facts are taken into consideration? P. W. 1 stated that

Naresh Das stated that he has kept opium concealed in a thatch field of Achabam Tea Estate.

The thatch field was found and pits were found there but no opium was found. The 'information' did not relate to even pits at Achabam thatch field. So this statement by Naresh with regard to Achabam thatch field and pits is not admissible in evidence under Section 27. Then there is the evidence of P. W. 1 about the accused 'pointing to pits where opium had been placed'. This 'pointing to pits', if there is reliable evidence about any incriminating nature of such pits, aliunde, would have been a different matter. But the accused in this case 'pointing to pits where opium had been placed' may only be his conduct in pointing to pits without the incriminating information deposed to by P. W. 1, adding the qualification 'where opium had been placed'. The alleged statement of accused Naresh 'where opium had been placed' has nothing to do with the discovery of the pits at Achabam following certain information given by the accused. Therefore, the only admissible part in the evidence of P. W. 1 with regard to accused Naresh is the latter's pointing to the pits at Achabam thatch bari and nothing further. That by itself is of no consequence.

With regard to the further statement of accused Naresh to P. W. 1 to the effect that 'he has taken away the opium from there and kept it in the hay store of Mahavir Bharatia' and the accused's later production of the opium from the hay store of Mahavir Bharatia would, if the statement said to have been made to P. W. 1 is believed, go to make the information given by accused Naresh about the existence of the opium in the hay store of Mahavir admissible under Section 27. The most important point therefore that arises for consideration is whether accused Naresh furnished this information to P. W. 1, following which the opium was found in the hay store and was in fact produced by him from inside the hayrick. In a matter like this, normally we would have accepted the conclusion of the learned Judge. But it is to be regretted that there is a total lack of appreciation of the evidence and the circumstances by the learned Judge in disposing of the appeal. It has to be remembered that P. W. 1 and P. W, 3 gave evidence after two years of the detection. When, however, the seizure list was prepared then and there on the spot, with regard to the recovery of the opium, it was recorded as follows:

When questioned, the accused persons Suleman Munchi, Naresh Chandra Das and Habibjan Khan, themselves produced the opium from inside the aforesaid hay-stack in presence of the witnesses.' (the reference is to the production of 58 kilograms of opium in four receptacles - 'Ka', 'Kha', 'Ga' and 'Gha').

Even here, there is nothing about the three accused leading excise party to the haystack for showing opium. Detailing his evidence, the learned Judge implicitly relied upon the evidence of P. W. 1 by making a sole observation as follows:

Now this witness was thoroughly cross-examined on behalf of all the accused persons but nothing appears to have been brought out from his evidence so as to discredit him as a witness.

This is, however, no appreciation of evidence given by the witness. So far as the important part in the evidence of P. W. 1 affecting Naresh Das is that it is Naresh who gave him the information about the concealed opium and that it is Naresh again who look him to the hay store of Mahavir Bharatia and produced the opium from there. There is no discussion by the learned Judge whether these facts deposed to by P. W, 1 are established. The learned Judge has completely omitted to consider that the seizure list Ext, I, the document which was prepared by P. W. 3 immediately on the spot after discussion with P. W. 1 and under his instructions and signed by both of them, does not refer to any information given by Naresh to P. W. 1, in consequence of which the opium was said to be recovered. The seizure list does not even refer categorically to Naresh alone as producing the opium from inside the hay stack. It refers to 3 accused mentioned above as producing the opium in presence of witnesses. But, there is not a single witness to depose to that fact in support of the recitals is the seizure list. The learned Judge has not taken count of the fact that even P. W. 1 and P. W. 3 have given a go by to the contents of Ext. 1. The learned Judge was invited to believe and he believed that Naresh alone is responsible, that Naresh informed P. W. 1 about the concealed opium and that Naresh led the party and produced the opium from inside the hay-stack. If these facts are established, the offence under Section 5 (a) of the Act may be made out against Naresh. But are these facts established on the evidence of P. W. 1, P. W. 3 and P. W, 4 relied upon by the learned Judge? The learned Judge again has not referred to the cross-examination of P. W. 1 wherein he was confronted with the material omission in the seizure list, Ext. 1, of the part ascribed solely now to Naresh by this witness. This has ordinarily to be noticed in order to appreciate the testimony of the witness, who was responsible for the preparation of the seizure list,

It is intriguing as well as amazing that the two Excise Officers, P. W. 1 and P, W. 3, would not record to that effect in the seizure list if Naresh alone had given the information of the opium and he alone produced the same from inside the haystack.

These are the two obvious facts which should have found place in the seizure list prepared on the spot. These two facts are exactly what P. Ws. 1 and 3 have asserted in evidence in Court after two years of the recovery while they bad disclosed something quite different in the seizure list. The learned Judge's omission to consider the above relevant materials in the evidence has resulted in his complete lack of appreciation of the evidence of P. Ws. 1 and 3 and of he had considered these, it would have been reasonably not possible for him to implicitly believe these two witnesses as he as done in this case.

16. Further, with regard to P. W. 3, the learned Judge rested content by observing;

he also corroborates the evidence of P. W. 1 in all material particulars.

The learned Judge did not take note of the fact that he was not even present at Achabam thatch field where it is alleged that Naresh had made the statement leading to the discovery of the opium at Mahavir's godown. This witness P. W. 3, however, stated in his examination-in-chief as follows:

I was left in front of Mahabir Prasad's house along with the remaining accused persons. Sri Barna returned along with Naresh Das, Sulernan Munchi and Habibjan Khan one hour after he had gone to search Naresh Das' house. At the time, the witnesses, other constables and officers were with him, proceeding ahead with two other accused persons, Shri Naresh Das showed a thatch house right at the back side of his shop. Then we too went there. Accused Naresh Das showed us a box, two biscuit tins and a gunny bag in the hay-stack of the said house. On opening the said box and the tins, opium was found.

The learned Judge however did not at all refer to the cross-examination of the witness wherein he stated as follows:

Coming from there, Naresh proceeded ahead of others. We too followed him. At that time there was no conversation, Naresh and Suleman showed. They pointed out with their fingers. I saw from a distance of three 'nals'. Then Barua (witness No. 1) observed the formalities and then entered. I saw everything through the door of the 'kacha' house.

The above two versions of the witness are certainly not consistent. But the learned Judge has not at all considered the same, and was satisfied to say that 'this witness materially corroborates P, W, 1'. This P. W. 3 wrote the seizure list Ext. 1 under instructions from P. W. 1 and he must share some responsibility about his omission in the seizure list to ascribe to Naresh the part now said to be played by him. Why did P. W, 3 state in cross-examination that 'Naresh and Suleman showed'? Why did this witness say that 'Bania observed the formalities and entered the house'? The learned Judge has made no reference to these facts appearing in the evidence. The fact that P. W. 3 deposed that Baruah observed the formalities before entering the house will go to show that recovery of the opium might have been even made by search, after observing the formalities and not on informations supplied by Naresh and on production by him alone, as now sought to be made out in evidence. The learned Judge absolutely erred in law in ignoring the material evidence and coming to the conclusion that Naresh had given the information, following which he also produced the opium from inside the hay-stack of Mahavir Bharatia. When there are four receptacles containing the opium numbering about 100 packets and three accused are mentioned in the seizure list as producing the same, it is only natural that the seizure list should have shown which receptacle was produced by which accused. Giving now a complete go-by to that story, if P. Ws. 1 and 3 want to ascribe to Naresh alone that he produced all the four receptacles containing opium from inside the hay stack, the story becomes absolutely unreliable and is contradicted by the earliest documentary record, to which both the witnesses are parties.

17. The learned Judge has next dealt with the evidence of P. W. 4 as if he has corroborated P. Ws. 1 and 3. But as observed earlier, P. W. 4 has not stated in his evidence anything in support of P. W, 1 and of P. W. 3, On the other hand, since the learned Judge has relied upon P. XV. 4, it may be worth-while to note that this witness (P. W. 4) stated as follows:

I was led to the thatch field by Bhuban Barua. With me Manpun Duara and excise personnel went there .... Accused Suleman, Naresh and Habibjan were also taken there. At first, the holes were examined there, but nothing was recovered. Then we returned from there and went to Umatara. Barua showed its the thatch house. A trunk and two biscuit tins were recovered from within the thatch house. The 'raiz' (people) said that the said house belonged to Mahabir. Opium was recovered from within it.

P. W. 4, thus, who is an independent witness does not implicate Naresh at all. On the other hand, according to him, it is not Naresh but Baruah (P, W. 1) who showed the thatch house wherefrom opium was recovered. P. W. 7, whom we have already discarded as an unreliable witness, did not have anything to say about the alleged statement of Naresh nor the production of opium from the godown and need not be considered.

18. From the above discussion, it is clear that the offence under Section 5 (a) of the Act is not established on the evidence against accused Naresh Chandra Das and he is acquitted of the charge and his conviction and sentence are set aside.

19. As regards accused Ahmed Noor Khan alias Nabu Khan, he was acquitted by the learned Sessions Judge under Section 5 (a) for possession of three grains of contraband opium found in the secret chamber of the car DLI 5860. He is also acquitted of the, charge of abetment under Section 10. He stands convicted only under Section 6 in that he 'permitted your vehicle DLI 5860 to carry, store, sell and smuggle contraband opium'. The learned Sessions Judge has found the following facts against him:

'(1) The fact of finding these three grams of opium is a piece of evidence connecting the vehicle with the carriage of opium....

(2) The keys of this vehicle was (sic) given by accused Ahmed Noor Khan taking out from his own pocket.

Obviously therefore the vehicle was in his possession and it was he who used the vehicle.

(3) Inside the vehicle a secret chamber was found where three grams of opium was found stuck to it.

(4) It is in evidence of P. W. 7 Peter Nag that opium was taken out from the car and removed to another place. ...

(5) The opium weighed about 58 kilograms and this could not have been put inside the vehicle by other passengers without his knowledge and consent.

With regard to the points 1 and 3 above, there is absolutely no evidence that three grams of opium were found sticking to the secret chamber of the car. The learned Sessions Judge has assumed it to be opium and did not advert to the Chemical Examiner's report, Ext. 4, as observed earlier. Although the two seizure list witnesses with regard to the recovery of the three grams or opium have not been examined, we will assume that this particular quantity of opium was scraped from the secret chamber of this car. As noticed earlier, we find that only one gram out of the three grams was sent to the Chemical Examiner Shillong, for analysis. But Ext. 4 shows that the Chemical Examiner received five grams of suspected opium and he gave the opinion that it was opium. It is, therefore, open to grave doubt whether the sample of one gram which was taken out of the three grams and sealed in the presence of the Sub-divisional Officer (Executive) (not examined in this case) was actually sent to the Chemical Examiner for his opinion. There is, therefore, no legal proof that the three grams of scraping from the secret chamber of the car are opium. The learned Sessions Judge is, therefore, absolutely wrong in holding that the secret chamber contained traces of opium in the absence of any evidence to that effect, The first and third findings of the learned Sessions Judge are, therefore, perverse,

With regard to the fourth point, we have already rejected the evidence of P. W. 7. Even so, we should point out that this witness never mentioned the name of accused Noor Khan, nor did he identify him. On the other hand, he stated in the cross-examination as follows:..I did not see the people from Delhi on previous occasions. I do not know wherefrom they came....I shall be able to identify the people from Delhi if I see them. . ..

There was no test identification parade in this case. Accused Noor Khan is one of the guests from Delhi. He was not known to P. W. 7 from before. The evidence of P. W. 7 is, therefore, of no avail against accused Noor Khan.

With regard to the fifth point, there is not a tittle of evidence in the record to show that 58 kilograms of opium were taken out from this car DLI 5860. P. W. 7, the sole witness on the point, did not identify any car and not certainly the car in question which was produced in Court and marked as Material Exhibit VI. The fifth finding of the learned Judge is completely erroneous.

With regard to the second point, when the car cannot be connected with the three grams of opium or the 58 kilograms of opium seized in this case, the fact that accused Noor Khan produced the key of the car is of no consequence. Thus, the conviction of accused Noor Khan is not sustainable in law. Hence, the charge under Section 6 against accused Noor Khan is not at all established against him. His conviction and sentence are set aside and he is acquitted of the charge.

20. The trial Court confiscated the car DLI 5860, apparently, under Section 29 of the Act. The learned Sessions Judge has not adverted to the order of confiscation. But, we assume that on the dismissal of Noor Khan's appeal, resulting in his conviction under Section 6, the order of confiscation has necessarily been maintained. Since, however, the order of confiscation is based on the footing that the car in question was allowed by Noor Khan to carry or smuggle opium, he having been found not guilty of any of the charges, the order of confiscation must necessarily be liable to be set aside. We, therefore, set aside the order of confiscation of the car DLI 5860.

21. There remains now the case of accused Suleman Munchi, who is convicted under Section 10 in that he 'abetted others to sell, store and smuggle opium'. The charge is extremely vague. It does not say who are the others whom the accused has abetted. The learned Sessions Judge has referred to the evidence of P.W.7, whom we have held to be untrustworthy. The learned Judge also found that five persons from Delhi were putting up with Suleman as guests in his house. This, however, is no evidence of abetment. The learned Judge also observed that bag containing ten grams of opium was found in the house. There is no evidence about this recovery led in this case. The learned Judge finally observed:

Although it is not proved directly that he was in possession of the opium but he knew the existence of opium and he also knew that the persons who came from Delhi in the car were indulging in such activities inasmuch as he himself helped them in removing the opium from the car. From the facts and circumstances it is clearly established that he abetted Noor Khan and also Naresh Das for carriage and possession of the opium in question....

P. W. 1 and P. W. 3 in their evidence do not implicate Suleman with the find of opium in the godown. They do not state about Suleman removing opium from the car. Mere knowledge of existence of opium vaguely somewhere and knowledge that some persons were indulging in smuggling activities would not furnish the ingredient necessary for constituting abetment under the Act. Abetment, though not defined in the Act, must at least be of the like nature defined under Section 107, Indian Penal Penal Code. The charge of abetment under Section 10 against accused Suleman is not established and his conviction under that section and sentence are set aside. Accused Suleman is acquitted of the charge.

22. Disposal of a criminal appeal under the Code is not a mechanical exercise. It is a complete re-hearing on the records except that the Sessions Judge is deprived of the presence of the witnesses before him. He has to bring his fresh independent mind into the whole case in order to correctly appraise the guilt or innocence of the accused. He has to take note of the legal and dependable evidence as against each accused and to find if conviction is sustainable on that evidence. It is particularly important since, in revision, the High Court ordinarily accepts the conclusion of facts of the Sessions Judge if arrived at after proper appreciation of the entire evidence. It is unfortunate that the judgment in appeal lacks these bare essentials and is of no help to the High Court in revision.

23. In the result, the revision applications of accused Naresh Chandra Das, Ahmed Noor Khan alias Nabu Khan and Suleman Munchi are allowed. Their bail bonds are cancelled. The order of confiscation of the car DLI 5860 is also set aside. The seized opium is confiscated to the State.

Baharul Islam, J.

24. I agree.


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