M.C. Ghose, J.
1. The petitioner Sudam Chandra Bag was convicted by a Magistrate under Section 14, Dangerous Drugs Act, for possession of a quantity of cocaine and sentenced to rigorous imprisonment for nine months and a fine of Rs. 1,000. On appeal the learned Additional Sessions Judge upheld the conviction but reduced the imprisonment to six months and the fine to Rs. 500. It is urged in this Court that there is no legal evidence to connect the accused with the possession of the cocaine. It appears that one Suren Haldar was a co-accused with the petitioner. After some evidence was taken the Magistrate on the prayer of the Public Prosecutor discharged him under Section 494, Criminal P.C., and thereafter the Public Prosecutor examined him as a prosecution witness. The learned Counsel has urged that Suren Haldar, in the circumstances, was not a competent witness.
2. After hearing the learned Counsel who quoted many cases, and after hearing the learned Deputy Legal Remembrancer I am of opinion that Suren Haldar was a witness competent in law. The trial Magistrate was within his discretion in permitting the Public Prosecutor to withdraw from the prosecution of Suren Haldar in order that his evidence might be available for the charge against the other accused who was being tried jointly with him: see the case of G.V. Raman v. Emperor : AIR1929Cal319 . It is also urged that even if Suren's evidence be competent in law his evidence was pointed and should not be accepted without proper corroboration. There is some force in this argument of the learned Counsel though it is to be bo served that the co-accused against whom the charge has been unconditionally withdrawn is a more reliable witness than the accomplice who is examined under conditional pardon: see the case of Queen-Empress v. Hussein Haji (1901) 25 Bom 422.
3. It is next urged that there was no evidence to connect the accused with the place where the cocaine was found. So that no presumption can be drawn that the accused was in possession of the same. The evidence is that the petitioner Sudam took a police officer to two separate places which upon his direction were dug out and the incriminating cocaine was found there. The learned Counsel urges that the alleged statement of the accused was made at a time when he was not in police custody and therefore his statements are not evidence under Section 27, Evidence Act. I am of opinion that this argument is not correct upon the facts. Though the police officer deposed that he arrested the accused after the finding of the cocaine, it is clear upon the evidence that he had interviewed the petitioner and was with him for considerable time and walked with him to the two places where the petitioner pointed out the spot where the cocaine might be found. In the circumstances there is no doubt as to the fact that the accused was in police custody at the moment when he made the statement as to the spot where cocaine could be found. The Courts below were correct in finding, that the accused was in actual possession of the cocaine. In the circumstances I am of opinion that the petitioner was rightly convicted and that the sentence imposed by the Sessions Judge is not, in the circumstances of the case, too severe. The Rule is discharged. The petitioner, if on bail, must surrender to his bail and serve out the sentence.
4. I agree.