1. In this case the appellant Muhammad Ibrahim or Ibrahim Pahalwan Was placed on his trial with six others before the 4th Presidency Magistrate on charges of unlawful possession of opium Under Section 9 of Act I of 1878. All were convicted and sentenced and the present accused, who received an appealable sentence, has appealed.
2. The case for the prosecution is that in concert with certain informers certain Excise Officers arranged to give to the appellant a quantity of cocaine in exchange for a corresponding quantity of opium to be obtained from him. For the purpose of carrying through the transaction a house, No. 1, Eden Hospital Lane, was hired. In this house behind the ball there are two rooms with an inter-communicating door. At the bottom of this door there are two holes, one a semicircular hole measuring 2 1/2 by 1 1/2 inches at the meeting of the two-halves, and one a larger triangular hole caused by the decay of the wood work against the door post on the west. There are also doors leading from each room into the hall in front and into corridors at the back and sides. To this house on the morning of the 14th August, a Mr. Pogose, a Sub-Inspector of Excise, took 25 ounces of cocaine obtained from the Excise Superintendent Raha. With an excise peon Sebrati, Pogose placed himself in the southern room, and to the northern room were brought by the informers the appellant Ibrahim and another accused Rafiq. This was at about 5 a.m. The cocaine was shown to Ibrahim, who then left to fetch the opium. lie returned. without it, at about 11 a.m and it was then arranged that he should bring it in the evening.
3. At about 7 P.m. the same day Excise Inspector Hossain stationed himself in the southern room. At or soon after 8, the seven accused came with the opium and, on a signal given, Pogose, two Sergeants of Police and the excise peons raided the house, and arrested the accused. One was captured in the northern room, five as they rushed into the adjoining, room, and Ibrahim the appellant as he tried to make his escape through the hall. The opium brought by the accused to, and seized in, the northern room in a variety of packages was found to weigh just under 31 seers.
4. The case of the appellant is that he knows nothing of the opium, that he was arrested when walking along Eden Hospital Road as an innocent passer by, 'And was hustled into the house in question. He further says that on the morning of the 14th of August he was in Burdwan. and that this case has been falsely brought against him because he has incurred the displeasure of Excse Officer Pogose.
5. We may first examine he, defence evidence.
6. In support of the appellant's allegation that on the morning of the 14th he was absent at Burdwan, two witnesses have been examined, a doctor named Atul Kumar Bose and a Pleader, named Azizur Rahaman. Their story is that the appellant was staying at the house of a friend named Monajat Ali and that the doctor treated him for diarrhoea from the 12th to the 14th and on each day gave him a prescription. The Pleader says that on the 14th he received from the appellant a sura of Rs. 5 as a subscription to a Muhammadan association. Now the appellant is not a member of the association, and this is the only subscription the Pleader realised in the course of the year 1916. The receipt and the counterfoil do not agree and the Treasurer's cash book has not been produced. The prescriptions again are on loose pieces of paper and not on pages from the doctor's printed prescription hook. The doctor is the family doctor both of appellant's friend Monajat Ali and of the Pleader Azizur Rahaman. Monajat Ali has not been examined. The doctor does hot explain why on the 30th October he should have asked another doctor (S.K. Sen) to countersign a certificate which the defence does not produce. We are satisfied that both these witnesses have given false evidence.
7. In explanation of his presence in Eden Hospital Road on the night and at the time in question appellant says that feeling uneasy after his return by an afternoon train to Calcutta he went to his family doctor, got a prescription and was arrested when on his way home. In support of these explanations are examined the doctor, Sham Chand Baral, one Rajeni Kumar Butt, and Sub-Inspector Hansen, then of the Bowbazar Thana, to which thana the appellant was taken under arrest at about 9 p.m, The doctor says that between 7-30 and 8 p.m. the appellant came to his house and obtained from him a prescription for Rubini's Essence of Camphor (Exhibit B). Hansen says that at the thana between 10-30 and 11 P.m. and before appellant's release on bail he was shown Exhibit D by the appellant and at the latter's request placed his initials upon it. Rajani Butt says he saw the appellant's arrest by a Police Sergeant at a point on Eden Hospital Road a little to the east of its junction with Eden Hospital Lane. He is a chance witness and is a friend of, and has had business dealings with, the appelant. The doctor's prescription again is on a piece of paper, loose or taken from a book without counterfoils. The doctor as no diary and no register. For a well-known article such as Rubini's Essence of Camphor no prescription is necessary, and the doctor has to say that there was nothing serious the matter with the appellant, a well-to-do man, who has been his patient for three or four years.
8. Hansen's conduct on his own showing is peculiar. The accused were brought to the thana at about 9. The charge was entered, and the Excise Officers and others of their party left at 10-15. About 10-30 the appellant, he says, showed him Exhibit D. He does not explain why he returned it to appellant instead of retaining it and entering it in his: register. He was examined on the 22nd November and when recalled for cross-examination on the 20th November, says for the first time that before initialling Exhibit D he took his superior officer Inspector Rai's permission. It is one of the complaints of the defence that their application, made on the 1st December, for a subpoena upon Rai was refused. It is said that the statement regarding Rai made by Hansen on the 20th November came as a surprise to the defence, but, if true, it should not have been a surprise to the appellant and we are of opinion that the application made at that late stage was properly refused. We may further notice that the appellant has not explained why he said nothing of Exhibit D to the superior Excise Officers Raha and Platts who found him under arrest at No. 1, Eden Hospital Lane, at about 9 P.m. We are satisfied that these three defence witnesses have also given false evidence.
9. We may now examine the evidence adduced by the prosecution. At the outset, we may say that the Magistrate has improperly admitted in evidence certain incriminating statements said to have been made by the appellant to Messrs. Platts and Raha. It has been contended on behalf of the appellants that the Excise Officers, who have large powers of search, arrest and detention, are to be regarded as Police Officers within the meaning of Section 25 of the Evidence Act. We need not decide this question, as it is the case for the prosecution that two Police Sergeants accompanied the Excise Officers, assisted in the arrest of the appellant, and were in the house as part of the force in charge of the prisoners at the time when the statements are said to have been made. Though these Police Officers were not in the room with the appellant, Raha, Platts and the excise peons, yet in our opinion when, making a statement in that room, the appellant is to be regarded as in Police custody for the purposes of Section 26 of the Evidence Act. The statements are, therefore, inadmissible.
10. Of the prosecution witnesses, Sergeant McCreedie and Sergeant Gibbons (examined nominally as a Court witness) attempt to support the defence. Gibbons says that he arrested the appellant on the Eden Hospital Road 3 or 4 yards to the east of the junction with Eden Hospital Lane. Both say that the appellant struggled and was hustled by them into the house No. 1 and there in the house was taken charge of by the Excise Officers.
11. The two sergeants have hopelessly contradicted one another, and have also in the course of their depositions contradicted themselves. McCreedie has further contradicted his own previous statement taken from him in the presence of Gibbons by Raha on the 31st of October and admitted by McCreedie to have been correctly recorded. It is inconceivable also that if their story had been true, appellant would not have given his account of his arrest to Mr. Platts and it is char that he did not do so. The two Police Sergeants are, it would seem, taking advantage of the fact that by mistake one of the informers was arrested by some one of the party, and we are satisfied that for reasons best known to themselves they also are deposing falsely.
12. The other prosecution witnesses, Pogose, Hossain and Sebrati, fully bear out the prosecution case as already set out. They are corroborated by the seizure of the Opium, and by the capture (which is beyond dispute) of the six other accused. They are further corroborated by Raha as to the 25 ounce of cocaine and by Raha and Platts who at ahout 9 p.m. found all the accused including the appellant under arrest within the house.
13. It is urged that through the hole or holes to which reference has been made the witnesses, Pogose in the morning, Hossain in the evening, could, hot have seen the appellant as they say they did. Here the defence relies on the evidence of the plan-maker, Manna, who says that through the middle bole he could see into the adjoining room to a distance of only 3 1/2 feet and could see a man sitting in the room only up to the waist. No doubt, to see into the adjoining room, both he and the Excise Officers had to stretch themselves on the floor and this they say they did. Pogose does not say he confined himself to the middle hole and it may well be that being younger men they were able to adjust themselves better than Manna. We have no doubt on their evidence that the opium in question was taken to the house by the appellant in pursuance of the arrangement of which the officers speak and that he was arrested in the hall by Hossain as he was attempting to make his escape.
14. In conclusion, we should say that we view with grave concern the manner in which the proceedings before the Magistrate were protracted. The hearing began on the 12th of September and did not conclude until the 7th of December. In the course of these three months or so on as many as 10 different dates, at intervals of 5 to 13 days, witnesses were examined at cross-examined by batches, in whole or p Article We have already animadverted on the evils attendant on this method of trial and we invite the special attention of the Magistrate to the judgment of this Court in the case of Meredith v. 'Sanjibani Dassi 28 Ind. Cas. 1000; 42 C. 813 ; 19 C.W.N. 278 ; 16 Cr. L.J. 424.
15. Lastly, we should say that Superintendent' Raha would, in our opinion, have been better advised if after the commencement of the trial he had refrained from taking a statement from the witness McCreedie on the 31st of October.
16. For the reasons already given we dismiss this appeal and affirm the conviction of and sentence upon the appellant, who will be now called upon to surrender, to his bail and undergo the unexpired portion of his sentence.