- (1.) THIS is an application by the accused Kanwarlal to revise the order of the learned Additional Sessions Judge, Jhalawar by which his conviction and sentence under sec. 9 of the Opium Act have been confirmed. The accused was prosecuted in the court of the Extra Magistrate, Iklera on the allegation that while he was going on the road leading from Nasirabad to Path, on the night of the 5th of September, 1951, opium weighing 4 seers and 13 chks. including the cloth in which it was tied up was recovered from his possession by the Sub-Inspector Chandra Prakash Bakani. The Assistant Sub-Inspector Jogindra Nath also accompanied the Sub-Inspector, and it is alleged that at the time of recovery of the opium, Dhulilal, P. W. 1, and Nandlal Nai were also present. The recovery memo of the opium was made and it was signed by these two witnesses and the accused was afterwards challaned under sec. 9 of the Opium Act in the court of the Extra Magistrate, Jhalawar.
(2.) THE accused denied that any opium was recovered from his possession. He pleaded that in fact the opium was in possession of Nanda, P. W. 2, and because, Nanda said that it belonged to the accused, the accused was challaned instead of Nanda. THE learned Magistrate was satisfied by the prosecution evidence that the opium was recovered from the possession of the accused and therefore, convicted and sentenced him to six month's rigorous imprisonment and a fine of Rs. 50/ -. Against this conviction and sentence, the accused appealed, but the learned Additional Sessions Judge, Jhalawar. dismissed the appeal. Now, he has come in revision. It was argued by Mr. D. C. Bajpayee on behalf of the applicant that the prosecution case rested on the evidence of two police employees i. e. , the Sub-Inspector Chandra Prakash and the Assistant Sub-Inspector, Joginder Nath and that of two witnesses Nanda and Dhulilal who are said to be the witnesses of the search. It was argued that the evidence of the police employees was interested and the evidence of the two other witnesses i. e. , Nanda and Dhulilal about the search could not be relied upon as under sec. 103 of the Criminal Procedure Code, the witnesses of the search should be respectable witnesses of the locality, Nanda, it was argued was not a respectable witness as he was himself an opium smuggler. As regards Dhulilal, it was argued that he was not a witness of the locality. The ruling of a Division Bench of this Court in the case of Sarkar vs. Hans Raj. (l) was relied upon. On behalf of the State it was argued by Mr. R. A. Gupta, Deputy Government Advocate that the two witnesses who have attested the search memo were the witnesses who were present on the spot at the time of the recovery of the opium. They could by the best witnesses of the search in question. There was no evidence to show that they were not respectable witnesses and the words respectable in this connection does not necessarily mean a man of position. Any witness who is a disinterested witness and not of disreputable character can be said to be a respectable witness within the meaning of sec. 103 of the Criminal Procedure Code. As regards the locality it was argued that they were present on the spot at the time of recovery and besides Nanda is a resident of Nasirabad which is the nearest village to the place of occurrence. As regards Dhulilal, it was argued that although he belongs to a village which is about ten miles from the place of occurrence,yet he was also on the spot at the time of search and so the search memo is not vitiated and the search was perfectly alright. I have considered the arguments of both the learned counsel. No doubt the Sub-Inspector Chandra Prakash and the Assistant Sub-Inspector Joginder Nath were police employees' but merely on that account their evidence cannot be discarded. No other reason has been shown why they should not be believed. It has not been denied that these were the two persons who were present at the time of the arrest of the accused. As regards the witnesses of the reach, it is not denied that Dhulilal and Nanda were present on the spot when the accused was arrested. When a certain article in respect of which crime has been committed, is recovered at night not in a village, but on a road the best witnesses for the search could be the persons who happened to be on the spot at that time. It the Sub-Inspector had waited till the witnesses were imported from a certain distance, the prosecution case would have been subjected to a lot of criticism for the reason that the search was made after long delay. It is not possible in a recovery like the present to import witnesses from outside. In cases where a search is premeditated, it might be possible to send for the best witnesses to witness the search, but in cases where all of a sudden an accused is found on a road, the best witnesses could be the witnesses who are found on the spot. It has not been shown that Dhulilal and Nanda were disreputable witnesses. The only thing which is said about Nanda is that the accused and two of his witnesses have said that Nanda was himself an opium smuggler. However, the accused failed to prove that any report was ever made against Nanda of opium smuggling or he was ever involved in a ease relating to opium smuggling. The two defence witnesses who have deposed that Nanda was an opium smuggler, have stated that Nanda himself wanted to purchase opium from them. Nanu-ram D. W. 2 has however, stated that he does not deal in opium. He has also stated that Nanda did not ask for opium from him in the presence of any order person. Lala, D. W. 1, also who has spoken about Nanda being an opium smuggler does not deal in opium. The evidence of these two witnesses has been rightly disbelieved by the lower courts. There, therefore, remains nothing against the two witnesses to the search, namely Nanda and Dhulilal, and they have been rightly believed by both the lower courts. They were present on the spot when the accused was arrested even according to the defence. The decision in the case of Sarkar vs. Hansraj (l), does not help the accused. In that decision there is nothings to suggest that men of modest means on belonging to community which are not con-sidered to be very high are not respectable witnesses. In that case it was held that there was material on the record to show that the search witnesses were not respectable persons and that stress in sec. 103 of the Criminal Procedure Code is laid more upon respectable inhabitants than upon locality and the term locality is rather an elastic term and its true connotation depends upon a variety of considerations. In may opinion, there is nothing on the record of this case from which it might be inferred that the two witnesses were not respectable witnesses within in the meaning of sec. 103 of the Criminal Procedure Code. It was argued by Mr. Bajpayee that the search memo was not made on the spot. It may not always be possible to make a search memo on the spot specially when a certain recovery is made in an uninhabited place. The witnesses Nanda and Dhulilal have clearly stated that the opium in question was recovered from the possession of the accused in their presence and the fact that the search memo was made at a different place does not materially affect this case when the attesting witnesses to the search memo are the same in whose presence the recovery was made. In my opinion there is no ground for interference with the conviction of the accused. As regards the sentence, a very substantial quantity of opium was recovered from the possession of the accused. It is not always easy to catch hold of opium smugglers. A deterrent sentence was, therefore, called for in the case and I see no reason to very the sentence. The application for revision is dismissed. The applicant is on bail and he shall immediately surrender to it. .;