- (1.) THIS is a revision by the Sarkar against the order of the learned Sessions Judge, refusing to enhance the sentence. There were too accused in this case. Hans Raj and Bhera and according to the prosecution they were found in possession of illicit opium weighing 304 Tolas and convicted and sentenced by the learned Magistrate of the Trial Court under S. 5 (f) of the Marwar Excise Act to a fine of Rs. 1000/-or three months' rigorous imprisonment in default. The revision petition by the Sarkar in the court of the learned Sessions Judge failed on the ground that the accused were the servants of some body who was the real owner of the opium found in their possession and that no useful purpose could be served by sending the servants to jail when their master could not be traced and prosecuted. THIS revision was directed against both the accused Hans Raj and Bhera but in as much as Bhera is not traceable although a warrant has been issued against him several times, the learned Government Advocate has chosen to press the case against Hans Raj only and reserved to himself the liberty to file another revision against Bhera later if he becomes available.
(2.) NOW so far as Hans Raj is concerned, the prosecution case against him is that some directions had been given to P. W. 3 Bhaboota Ram a liquor licensee in Jodhpur by Chau-dhari Gordhan Singh, Assistant Excise Commissioner to report cases of illegal possession of excisable articles as and when they come to his knowledge or notice. On 2nd of October 1945 Hans Raj is alleged to have come into the trap and offered to sell to Bhaboot Ram a certain amount of illicit opium. Bhaboot Ram to all intents and purposes is a liquor licensee only and there is nothing on the record to show that it was known in shady quarters that he was also doing illicit trade in the purchase and sale of other excisable articles at the counter. Therefore, there is a gap in the prosecution evidence as it does not attempt to explain why should Hans Raj go to a liquor shop with an intention of selling illicit opium there. Be that as it may the prosecution case is that Bhaboot Ram directed him to come to his shop at 10 P. M. the next day. Meanwhile he informed Chaudhari Gordhan Singh and the Excise Inspector Kan Singh of the above incident. The later arranged to be present at the shop at the fixed hour allong with Motbirs. It is stated that at 10 O'clock or soon after Hans Raj came and also the excise party on a signal being given by Bhaboot Ram. A lantern was hanging in the shop and the signal was that as soon as Hans Raj arrived, the lantern was taken down. On their arrival, they searched the person of Hans Raj and recovered from him 2 tins contain-ing 193 Tolas of opium, and an iron balance, 4 weight measures and. Rs. 10/-in cash. The accused was thereafter challaned under S. 5 (f) of the Excise Opium and Drugs Act in the court of 1st Class Magistrate Jodhpur. The prosecution examined 6 witnesses consisting of 3 Motbirs, namely, P. W. 2 Ganpat Singh, P. W. 4 Poosaram, P. W. 6 Mohan Singh besides P. W 1 Kan Singh, P. W. 3 Bhaboot Ram, the liquor licensee, and P. W. 5 Gordhan Singh. The accused denied the recovery and pleaded not guilty and also produced 4 witnesses in defence and put forward a story with which, in the view that we are taking in this case, it is not necessary to deal. The learned Government Advocate has urged that it was a case under Excise Act and since these cases are difficult to detect, it was imperative that the accused should have been given a substantive sentence. If that were all, we may have taken the view that in the circumstances of this case, since a maximum sentence of fine had been imposed, the sentence was not so grossly inadequate so as to call for interference. It is, however, urged on behalf of the accused, by the learned counsel Mr. Chand Mal that the statements of the Motbirs who have been produced in order to support and strengthen the prosecution evidence has gone a long way to make it extreemely weak so that the case now stands on very slender footing, and that, if this evidence is duly taken into consideration, the accused is entitled to acquittal. The learned counsel has urged that taking into consideration the strict provisions of Section 103 Cr. P. C. the search was illegal, in as much as, the Excise Inspector has failed to collect two or more respectable inhabitants of the locality and make the search in their presence. There is no doubt that under this Section, it is obligatory on the officer about to make a search to get two or more respected inhabitants of the locality to make the search the object being to safeguard the rights of the subjects and to ensure that the search is conducted honestly. The learned counsel has cited 1947 (1. Inderjit V. Empror.) Allahabad 165 and 1949 Allahabad 291 (2. Dr. J airland V. Rex.) in support of his contention that search is vitiated if it is not conducted in the presence of respectable inhabitants of the locality. The priciple is good so far as it goes but it is difficult to rely upon it in this case in as much as, in the first instance, there is absolutely no material on the record to show that the Motbirs were not respectable persons and secondly, according to 1932 Patna 66 (3. Gopi Matho V. Emperor.) stress in S. 103 Cr. P C. is laid more upon "respectable inhabitants' than upon "locality. " The term locality is also rather an elastic term and its true connotation depends upon a veriety of considerations with which, in the view that we are taking, it is not necessary to deal in this case. Now so far as the statements of the Motbirs are concerned we are clearly of the view that the case built by the prosecution on the statements of the other witnesses has been cons derably weakened by the statements of P. W. 4 Poosaram and P. W. 6 Mohan Singh and that a conviction in this case, in view of the, statemants of these witnesses would not be free from all risk. Poosaram. curiously did not know the accused Hans Raj at all. He said at one place that he knew him but after looking at him, he stated positively that he did not know him at all. So far as the signal is concerned, the statements of other witnesses is that it consisted of the lantern being taken down whereas according to this witness the lantern was extinguished. It is not clear either where this witness was picked up from as although P. W. 5 Choudhari Gordhan Singh stated that he had picked him up from some where near Ralla Ram building, the witness himself stated that he was asked to become a Motbir while he was at the shop of the liquor licensee. It appears to us that this witness was not there at all as according to him "chepas" were affixed on each article separately whereas another Motbir P. W. 2 stated that only one "chepa" had been afixed and that was on a bag. Last of all the witness was not certain at all whether the opium had been recovered from the accused as he stated it may have been recovered from the shop. Then there is the statement of P. W. 6 Mohan Singh who goes no better than the last witness and completely shatters the prosecution case. The principal material in his statement consists of the broad fact that nothing whatsoever was recovered from the person of Hans Raj. He has contradicted P. W. 1 Kan Singh on another matter and tnat is as regards the vehicle which conveyed them to the shop. According to Kan Singh he went with the min the car whereas according to the witness, they went in the car whereas Kan Singh was on a cycle. It is a pity that the learned Magistrate of the Trial Court did not take into cons' deration the above material available in the prosecution evidence itself as otherwise he may not have come to a conclusion that the accused was guilty. We accordingly hereby dismiss the revision while at the same time, set aside the order of the conviction and sentence and acquit the accused. The fine if paid shall be refunded. .;