1. This is the appeal on behalf of the Local Government. Two men, Kashi Nath and Chunni Lal, were acquitted on appeal by the learned Sessions Judge of Cawnpore of a charge of being in possession of cocaine, an excisable article, contrary to Section 60(a), United Provinces Excise Act. In this case both the Magistrate who originally tried the case and the learned Sessions Judge were in entire agreement upon the findings of fact; but the learned Sessions Judge came to the conclusion that it was his duty to set aside the judgment of the learned Magistrate on this ground:
I have no doubt that either both the brothers on one of them deals in cocaine, but it
can not be said that necessarily both the brothers are dealing and if one of the brothers is dealnig in cocaine which of them is so dealing
2. The facts are that the two accused are brothers. They are members of a joint Hindu family, and they mess together and carry on a common business. It is admitted, at any rate, that the accused occupy a portion of a house, called baithak, which consists of a room with a tin shed upon it, from which cocaine was recovered, the lower room being rented out to some other person. Opposite, on the other side of the lane, is the house of the aunt-in-law of Kashi Nath, and it is alleged by the prosecution that the dalan and kothri of that house are also in the occupation of the two accused. On 30th June 1928, on information received, the police raided; the house of Kamal Devi and the baithak. They took with them search witnesses. At the time of the search the two accused were not present in either of the houses. In the dalan of the house of Kamal Devi were discovered six small packages of cocaine in a tin canister, 5 or 6 rattis, a candle and sealing wax. In the kothri which was a small room and was found locked up, there was a locked box. Both the room and the box were broken open, and in the box were discovered 47 packages of cocaine, all sealed up in one envelope in all some 73 tolas of cocaine was discovered. In a niche in the kothri was discovered a weighing scale with white powder upon it. In the baithak across the road, the staircase leading to the apartment was found locked, and the lock was broken. In the baithak a steel box was discovered, which was also locked. This was also broken open, and in it were discovered one packet of cocaine, a knife and some sealing wax. There were also in this baithak three weighing scales and some sheets of wax paper.
3. In Our view the prosecution have satisfactorily proved that the dalan and the kothri were occupied by the two accused. But, even if we did not so find, it is at any rate admitted that the baithak was occupied by the accused. It is not suggested in this case that the cocaine had been planted by the police. Indeed, it was idle to allege that such a large quantity of cocaine could be planted. If the prosecution evidence is true that in a locked up steel box in the baithak there was a package of cocaine, on this evidence alone a conviction would be correct. The facts in this case are overwhelmingly against the accused. The only point which we have to consider is the one upon which the learned Sessions Judge acquitted the accused.
4. It seems to us quite clear that, where in a small common house occupied by two brothers belonging to a joint Hindu family, and running a common business, there are discovered not only an enormous quantity of cocaine but all the necessary weighing machines and packing material to deal with it, it is idle to suggest that both brothers would not know of the dealings in cocaine. One brother could not possibly carry on business of this size without the knowledge of the other living as they did in small confined rooms. This is not the case of a large house, with one brother's apartment separate from the other. We are satisfied that the evidence can point only to the fact that both brothers were implicated in this cocaine business. No other finding, in our view, is possible. We are, therefore, of opinion that this cocaine was in the possession of both of them within the meaning of Section 60(a), United Provinces Excise Act. Having found this as a fact, the onus cast by the Act upon the brothers is to prove that they had satisfactory reason for being in possession of the cocaine. No private person could have a satisfactory reason for keeping in possession no less than 73 tolas of cocaine. Therefore, no attempt has been made to provide a satisfactory reason. No satisfactory reason being provided, the accused are both guilty of the offence with which they are charged. We set aside the acquittal order of the learned Sessions Judge. We convict the accused. The only question that remains is one of sentence.
5. It is to be noted that the learned Magistrate inflicted the maximum sentence upon the accused, namely, two years' rigorous imprisonment and a fine of one thousand rupees each. Although we agree that the crime is an extremely serious one, we think that the sentence is excessive. The accused have already been punished to the extent of Rs. 2,000 the value of the cocaine discovered in their possession. Cocaine to that value is in the possession of the Government, and that expenditure the accused will never recover. The evidence in this case is that the accused started this business only recently. We are also informed that one of the houses of the accused is mortgaged. There is at least no evidence that they have made any profit out of this business. Under all the circumstances of the case, we consider that a sentence of one year's rigorous imprisonment and a fine of one hundred rupees upon each of the accused will be sufficient to meet the ends of justice. We do not think that this is a case in which the accused should be bound over for good behaviour after they have served out their terms of imprisonment in this case.