DULAR KUMAR AND ANOTHER Vs. THE STATE
HIGH COURT OF GAUHATI
Dular Kumar And Another
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Ram Labhaya, J. -
(1.) THE petitioners were convicted by Mr. M.K. Chaudhuri, Magistrate, 1st Class, Dibrugarh, under S. 5(a), Assam Opium Prohibition Act of 1947. They were sentenced each to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 100 each and in default of payment of fine to further rigorous imprisonment for 2 months. Their appeal was dismissed by the Sessions Judge, U.A.D. This petition of revision is directed against the order of the learned Sessions Judge confirming their convictions and sentences.
(2.) THE petitioners are brothers. They lived in the same house. Their house was searched on 20 -11 -1949 by the Excise Inspector K.C. Saikia. The search was conducted with due formalities in the presence of independent witnesses. As a result of the search the Inspector first seized 4 pieces of papers (Exs. 1 -4). It was the prosecution case that these pieces of papers were memos of accounts showing payments to two persons Nanke and Bapung two notorious smugglers, who had been bound down under S. 11 , Assam Opium Prohibition Act. The residential portion of the house of the accused was enclosed by a tin sheet fencing. In the southwest corner of the enclosed courtyard, there was a heap of bricks. One of these bricks had a suspicious look. It was picked up by the Excise Jamadar and shown to the Excise Inspector in the presence of the witnesses. The Excise Inspector threw that brick against same hard substance. It broke and it was found that it contained 1 ¼ seer of opium. The opium was wrapped in a paper. There was also a linen covering and molten wax had been poured on it in such a manner that the packet looked like an ill baked brick. The recovery of opium from the courtyard of the petitioner is admitted. The contention raised is that opium was not proved to have been in the conscious possession of the petitioners and that their convictions were not sustainable in law.
(3.) THE learned Sessions Judge came to the conclusion that planting of the opium by someone from outside was excluded by the circumstances of the case. The quantity recovered is large. It is of a substantial value. It would not be easily procurable. It would not be anybody's worth his while to procure such a quantity of opium for purposes of planting. Mr. Ghosh has not challenged this view of the learned Sessions Judge and we think he was right in the conclusion that the opium recovered was not placed in the courtyard of the petitioners by someone from outside as was suggested in the Courts below.;
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