(1.) A party consisting of Shri Peshawarilal, District Opium Officer, Ratlam, P. W. 2, Shri Ram Prasad, Preventive Inspector, Narcotics Department, Neemach, P. W. 1, Shri Manaklal, Sub-Inspector, Narcotics Department P. W. 4, and Shri Abdul Latif, Head Constable, Gangapur Police Station, P. W. 9 searched a. house in the town of Gangapur, Bilwara District on 26. 6. 1960, and seized from a room in the ground floor from the house 7 bags containing opium weighing 3 maunds 31 seers and 1 Chattank (Bengal weight ). Anandilal, respondent, and his brother Kanhaiyalal and Smt. Dhapu wife of Anandilal were challaned before the Munsiff Magistrate, Gangapur, District Bhilwara under Section 9-A of the Opium Act, 1878. It may be mentioned that at the time of the search both Anandilal and Kanhaiyalal were not present and the room from which the bags of opium were-recovered was found to be looked. The key to the look was handed over by Smt. Dhapu wife of Anandilal to the search party and after opening the look the bags of opium were found in the room and they were seized. The learned Magistrate examined the accused under Section 251a. Criminal P. C. Both Anandilal and Kanhaiyalal denied that any opium was recovered from their house. Shri R. P. Agarwal, Advocate, was examined on behalf of Smt. Dhapu and he stated that opium was not recovered from the possession of Smt. Dhapu. He further stated that the husband of Smt. Dhapu was alive and he looked after everything. Smt. Dhapu only looked after the domestic affairs and did not know in what business her husband engaged himself, and that the house in which she resided was that of Anandilal. The learned Magistrate took the view that Smt. Dhapu, as stated by her, looked after domestic matters and that in Rajasthan, womenfolk,, who are illiterate and old, do not ordinarily know in what business their husbands engaged themselves. He, therefore, discharged Smt. Dhapu relying on Wazir v. Emperor AIR 1985 Pesh 68 and Nga Shwe Tee v. Emperor AIR 1987 Bang 484. Charges were framed against the other two accused and they were tried by the said Magistrate. The prosecution produced 10 witnesses but the Chemical Examiner, who had examined the samples taken from the bags seized, was not produced. Both the accused were examined under Section 342, Criminal P. C. , and they denied that any opium was recovered from their house. As many as 7 witnesses were examined in defence. The learned Magistrate held that the room from which the opium was recovered was locked at the time of search by the search party. The key of the lock was taken by the search party from Manoharlal son of Anandilal and the wife of Anandilal Brat. Dhapu Bai and then the look was opened and 7 bags were recovered, and these bags contained opium, as established by the evidence of the prosecution witnesses. He took the view that Smt. Dhapu was in possession of the room on behalf of her husband Anandilal, who, had gone temporarily to the market and be Anandilal must be held to be in possession of the said opium. He was, therefore, convicted under Section 9a of the Opium Act, 1878, and sentenced to two years' rigorous imprisonment and a fine of Rs. 2000, in default of payment of fine to under go further rigorous imprisonment for 6 months. Kanhaiyalal accused was, however, acquitted on the ground that Kanhaiyalal lived separately from his brother Anandilal in the same house, and could not be said to be in possession of the room from which the opium was recovered.
(2.) ANANDILAL filed an appeal before the Sessions Judge, Bhilwara. It was contended by the accused that the report of the Chemical Analyser, "government Opium Factory, Neemach, had not been proved in this case and that even the opium which was recovered was not brought to the Court. The learned Sessions Judge' ordered the State to produce additional evidence and also to produce the 7 bags of the opium seized. The prosecution then examined 2 witnesses in the Court of Session. Anandilal accused was again examined under Section 342, Criminal P. C. He admitted that the house which was searched was owned by him, but stated that the room from which the opium was recovered was not in his possession and it was in possession of Bhim Singh, One defence witness was, however further examined. The learned Sessions Judge heard the arguments afresh. Only two points were urged before him. One was that the prosecution had failed to prove conscious possession of the accused Anandilal over the opium which was recovered, and the other was that the room from which the opium was recovered was in the possession of Bhim Singh and not in the possession of Anandilal accused. The learned Sessions Judge rejected the second argument after discussing the evidence on record and held that the room from which the opium was recovered was part of the premises belonging to the appellant. The learned Sessions Judge, however, accepted the first argument of the accused. In his opinion, though the room was part of the premises of Anandilal, yet it was the wife of the appellant who possessed the key of the room, and who had handed over the key to the search party and, it wag quite possible that she herself might be carrying on business in contraband opium and she might have used the room for carrying such business without the knowledge of her husband. The learned Sessions Judge referred to Lachchu v. Emperor AIR 1914 Oudh 171; Narendra Nath v. The State ; Ram Narain v. The State 1955 Raj LW 267; The State of Himachal Pradesh v. Buti Nath ; Pratap Singh v. State AIR 1959 J and K 134 and Dharma Singh Mangal Singh v. State , in support of this view and acquitted the accused Anandilal. He, however, upheld the order of the trial Court confiscating the opium.
(3.) AGAINST this order of acquittal, this appeal has been filed of behalf of the State. Learned Deputy Government Advocate has contended that on the facts and in circumstances of the case and on the finding of the Sessions Judge, the only inference that could be drawn is that Anandilal, respondent, was in possession of 7 bags of opium which were found lying in a room, the key of which was with the wife of the respondent. Learned Counsel for the respondent hag urged that it was the duty of the prosecution to show that the bags of opium recovered were in the conscious possession of the respondent and that such an inference cannot be drawn merely be cause it was the wife of the respondent who had handed over the key to the search party. He has also contended that the learned Sessions Judge has acquitted the respondent as he was not satisfied on this point and the order of acquittal should not be interfered with in appeal, as there were no substantial reasons to do so.;