THADANI, J. -
(1.) THESE are two revision applications, Nos. 50 and 52 of 1951 under the provisions of Section 439, Criminal P.C. No. 50 of 1951 is by one Anwar Hussain and No. 52 of 1951 is by one Haridas Konwar, Anwar Hussain was convicted by a Magistrate of the first class, Dibrugarh, under Section 6, Assam Opium Prohibition Act (Act XXIII 23 of 1947) and sentenced to rigorous imprisonment for 4 months and to pay a fine of Rs. 50, or in default, to undergo further rigorous imprisonment for 2 months. His taxi, ASL 3929, was ordered to be confiscated and sold at a public auction, and the sale -proceeds credited to the Treasury. The applicant Haridas was convicted by the same Magistrate under Section 5(a), Assam Opium Prohibition Act (Act XXIII 23 of 1947) and sentenced to rigorous imprisonment for 4 years and to pay a fine of Rs. 5000, or, in default, undergo, further rigorous imprisonment for 4 months. Three other persona -(1) Purnakanta, (2) Mahendra and (3) Indreswarâ€ "were each sentenced under the same section to rigorous imprisonment for Once year, and to pay a fine of Rs. 200 or in default, to undergo further rigorous imprisonment for months. They did not prefer any appeal, nor have they filed any application in revision to this Court.
(2.) THE case for the prosecution was that on the night of 22.3.1950, S.I. of Police Mr. M. Kalita, accompanied by his staff, in the course of his patrol duty came to a place called Khowang at about 9 p.m. at 11.30 P.M. while be was checking up the motor vehicles plying from and to Dibrugarh, he saw a taxi bearing No. ASL 3929, coming from Dibrugarh and going towards Moran. In the Taxi, the S.I. and his party saw the applicant Haridas sitting with Anwar Hussain who was driving the taxi, and three other persons in the rear seat ; he signalled the driver to stop, and ordered the occupants of the taxi to get out ; on searching the taxi, the S.I. and his party I found a canvas bag containing six cakes of opium, and another Bazar bag containing 11 cakes of opium. The S.I. took possession of the opium, arrested the applicants and their companions and, on completion of the investigation, sent up the applicants and their companions under Section 5(a), Assam Opium Prohibition Act (Act XXIII  of 1917). At the trial after the applicant Anwar Hussain had led evidence in defense of two witnesses, tin learned Magistrate altered the charge against Anwar Hussain from one under Section 5(a) to one under Section 6 of the said Act; the charge against the applicant Haridas and others under Section 5(a) of the Act was retained.
The defence of the applicant Anwar was that on 22.3.1950, at about it 10.15 or 10.30 P.M. his taxi was standing at; the Dibrugarh Taxi Stand the applicant Haridas and his three companions came up and hired the taxi to go to Moran, for Rs. 50 the applicant Haridas had one bag (Ex. 1) in his hand, and Purnakanta who did not appeal, had another bag (Ex. II) in his hand Haridas took the other bag from Puruakanta and kept both the bags near his feet; near Khowang Bridge, was stopped by the Police, who searched the taxi.
(3.) THE defence of applicant Haridas was that on the night of 23.3.1950, he went to Dibrugarh Station to entrain for Gauhati where he had a case the following day the missed the train and, as he was about to go home, he saw a taxi coming from the Bazar side of Dibrugarh the driver of the taxi, applicant Anwar Hussain, stopped the taxi and asked him where he was going; he said, he had missed the train and was going home; Anwar suggested that ha should get into his taxi as he would be able to catch the train at Moran ; he agreed and sat by Answer's side ; on the way, the Police stopped the taxi and found opium from under the lungi of the driver, Anwar Hussain;