1. The appellant before us Srimati Batasi Moni Dassi has been convicted by the learned Additional Chief Presidency Magistrate of Calcutta under Section 46 of the Bengal Excise Act (Act 5, B.C., of 1909) for having sold cocaine and for being in possession of cocaine without a pass or license and has been sentenced to undergo rigorous imprisonment for a period of one year under each of the said two charges, the sentences to run consecutively.
2. The trial commenced on the 5th February 1925 and did not terminate till the 10th November 1925. On the day the trial commenced, the case against the present appellant was split up into two parts, viz., one charge in respect of the sale of three ounces of cocaine, and the other in respect of possession of cocaine. The case relating to the sale of cocaine was ordered to be proceeded with and on the 3rd March 1925 the Magistrate passed an order to the effect that the case in respect of possession of cocaine would be taken up after the disposal of the case in respect of the sale of cocaine. This was done apparently because as the Magistrate himself said later on he had no idea that the second charge against the accused related to a case of possession of cocaine on the same day as that on which it was alleged she sold the three ounces of cocaine. This Court having been moved by the accused against the order for adjournment of the hearing of the second charge, the Chief Justice and Mr. Justice Panton directed on the 27th May 1925 that the two charges, viz., for sale and for possession of cocaine against the accused should be proceeded with in one and the same trial. This was accordingly done and as stated above the trial came to an end on the 10th November 1925, the delay in disposal being partly due to the accused's illness.
3. In passing sentence upon the accused the Magistrate observed as follows:
The evidence shows that the accused was carrying on cocaine dealing in a very large way. It has been elicited in cross-examination that her reputation for years has been that of one of the most notorious of cocaine dealers. In the course of his speech for the prosecution Babu Kristo Lal Dutt stated that she possessed some of the finest equipages in Calcutta and three motor-cars and exemplary punishment is necessary. I sentence the accused to one year's rigorous imprisonment under each charge, the sentences to run consecutively.
4. In view of the order which we propose to make, the extract from the judgment of the Magistrate set out above requires separate consideration. Rat before we advert to it, it will be desirable to state shortly the facts giving rise to the present prosecution. It appears that sometime in January 1925 information was received by the Superintendent of Excise Mr. S.N. Roy that cocaine was being sold by the accused in contravention of the provisions of Section 46 of the Bengal Excise Act. Mr. Roy thereupon arranged with one Ram Lakshman Singh to purchase cocaine from the accused. On the 26th January 1925 he gave Ram Lakshman Rs. 180 in currency notes, the numbers of which had been previously taken down by him on a piece of paper (Ex. 2 in the case). Ram Lakshman, who was accompanied by two other persons named T. Ali and Inspector B.K. Bose, was thereupon sent with orders to purchase cocaine from the accused. Ram Lakshman went into the accused's premises, while the others waited a short distance away This was about 3 p.m., in the afternoon. It is alleged that Ram Lakshman purchased 3 ounces of cocaine from the accused for a sum of Rs. 180 and that payment was made to the accused in notes, the numbers of which, as stated above, had been taken down on Ex. 2.
5. Mr. Roy, on receipt of information of the purchase of cocaine, raided the preraises of the accused, that is, premises No. 28, Amherst Street. The raiding party went in ten taxi cabs and scaling ladders were used for the purpose of getting into the accused's premises. Ram Lakshman said in the presence of the accused that he had purchased three ounces of cocaine from the accused but the latter denied that she had sold any cocaine to Ram Lakshman. The premises were thereupon searched and a large number of packets of cocaine were discovered in the kitchen. Scrapings from the floor were also taken and, as will be seen later, they also contained cocaine. A search-list was prepared, being Ex. 3/1, and it appears that the articles which were suspected to contain cocaine were sealed in the presence of the accused, she also sealing the same. Some of the packets of cocaine were intact and some were half burnt and it was alleged that the accused and two other women, being her maid servants were putting some packets in the fire in the kitchen at the time when they were surprised by the raiding party. Mean while the Superintendent, Mr. Roy, having received information that the money which had been given by him to Ram Lakshman had found its way into a shop at premises No. 27, Amherst Street, these premises being also owned by the accused, proceeded to the shop in question and recovered certain of the currency notes of the value of Rs. 98 mentioned in Ex. 2 from one Pran Ballav Shaw, who was in charge of the shop in question. In consequence of a statement made by Pran Ballav (who was an accused in the case but has been discharged) early the next morning Rs. 70 more of these notes were recovered from a rice shop at Tollygunge. Besides the articles found in the kitchen there was also found in the bed-room of the accused in an iron chest a pair of scales. The suspected pickets of cocaine, as also the scales, certain empty tins, some water and other articles were sent to the Chemical Examiner for Customs and Excise and it Was discovered that there was cocaine in the packets referred to above, in the scrapings from the floor which had been taken and also on the scales. Thereafter the present prosecution was started, with the result indicated above. (After setting out the allegations of the accused the judgment proceeded.)
6. Turning now to the evidence on record at the outset we must express our regret that various matters which ought never to have been allowed to get on to the record-have been so allowed by the Magistrate. In our opinion the statements which had been obtained from Pran Ballav Shaw and the accused are not such as should have been received in evidence at all. They were taken by the excise officers after they had taken the accused and Pran Ballav to the excise barracks and while they were in custody, and they, i.e., the statements, in our opinion, cannot be considered voluntary statements and it is surprising that these should have been made exhibits in the case.
7. It is equally surprising that the Magistrate should have asked the Superintendent of Excise, Mr. Roy, what reputation the accused had and that he should have allowed Mr. Roy's opinion of the accused's reputation as being a dealer in cocaine on a very large scale to be admitted in evidence and to influence him in his decision. Further, in our opinion, the Magistrate should have insisted on the production in Court of the search witnesses who were present at the search of the accused's premises. (The judgment then discussed the evidence and proceeded.) There now remains for us to consider the question of the sentence to be inflicted on the accused. It is apparent from the judgment of the Magistrate in this case that extraneous matters have been allowed to influence him in determining the sentence which he passed on the accused. There is in our opinion no evidence to show that the accused was carrying on cocaine dealing in a very large way. We have already commented on the fact how evidence of repute was extracted by the Magistrate during the cross-examination of Mr. S.N. Roy. There is also no evidence on record that the accused possessed some of the finest equipages in Calcutta and three motor-cars. What the possession of equipages and motor-cars by the accused had got to do with the question of the sentence to be passed on the accused passes our comprehension. The learned Advocate-General very properly expressed his deep regret on behalf of the Grown that these and other irrelevant matters should have been referred to by the Magistrate in his judgment and at the way in which the case had been conducted in the police Court. There may be exaggerations in the complaint made by the accused about the manner in which her premises were searched and the way she was treated, but indications are not wanting on the record to show that the search was conducted and the accused detained in an inconsiderate manner. The prosecution in cases of this nature, or for the matter of that in every case, ought to be conducted fairly and squarely and nothing should be done so as to give ground for complaints on the part of the accused such as have been made in this case. We trust it will not be necessary for us to repeat the observations we have just made in future.
8. The sentence inflicted on the accused namely, one year's rigorous imprisonment on each of the two charges, the sentences to run consecutively, is, in our opinion, if not outrageous, extraordinarily severe and quite uncalled for. After full and careful consideration of the entire record, we have come to the conclusion that the ends of justice would be sufficiently met if we sentenced the accused to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 500 and in default to undergo rigorous imprisonment for one month more, on each of the two charges, the sentences to run consecutively. We accordingly modify the sentences in manner indicated above and with this modification we dismiss the appeal. The appellant who is on bail must surrender to her bail bond and serve out the remainder of the modified sentences.