Lachmi Prasad vs Emperor

Chapman, J.—The petitioner Lachmi Prasad has been convicted under the Opium Act for being in illegal possession of opium. The case against him was that he was the owner of a considerable quantity of opium having been previously a licensed opium vendor. Under the directions of the Police upon the information of a spy an arrangement was made under which an informer should make a pretended purchase of opium through one Ram Narain from Lachmi Prasad. The evidence was directed to prove that this arrangement was in fact carried out and when the time came for the delivery of the opium, Lachmi Prasad came out with his servant Balgobind and the servant had the opium under his arm. Subsequently the two were arrested in the street. The whole of this evidence, whether rightly or wrongly, has been disbelieved by the learned Sessions Judge. He believes only the fact that the two men Lachmi Prasad and Balgobind were arrested going down the street and that at that time Balgobind had the opium under his arm. There was no evidence believed by the Sessions Judge that Lachmi Prasad was ever found in physical possession of any opium. The conviction, so far as his judgment was concerned, depended entirely upon the evidence that the two were walking down the street together and that Balgobind in whose possession the opium actually was, was the servant of Lachmi Prasad. The evidence as to how the two were standing or walking in the street is of a very vague description. The evidence that Balgobind is a servant of Lachmi Prasad consists of a single witness, a coachman Sheikh Salamat, who says that he lives in the same mahalla as Balgobind and that Balgobind is Lachmi''s servant. It appears, however, in cross-examination that the witness had never been to the house of Lachmi Prasad. He says in his cross-examination that he had seen Lachmi Prasad going several times to the house of Balgobind, because Lachmi''s little son used to live with Balgobind whose sister was looking after the little boy on behalf of Lachmi. There is another witness called for the prosecution, however, who says that he had seen Balgobind sitting with the witness talking to Lachmi on a taktaposh and Lachmi sat on a chair. Sheikh Salamat says that Balgobind is a khidmatgar but he had never seen a khidmatgar sitting on a chowki in the presence of his master. The impression created by the statement made in chief by Sheikh Salamat is that his statement was a mere hearsay. It is the duty of the prosecution to remove that impression by asking the witness questions from which it would be made quite clear that he was speaking from direct observations, In order to justify the conviction of the master based entirely upon the possession of another person--and the case is that the other person is the servant--that case must be proved upon better evidence than what was produced in this case. It is not enough merely to call a witness who says that he is a neighbour of the servant and knows the fact of the service. Such a statement, as I have said, immediately suggests that the statement is mere hearsay.

We are of opinion that on this evidence the petitioner, Lachmi Prasad, should not have been convicted. His conviction and sentence are set aside. The fine, if paid, must be refunded.

Atkinson, J.

I concur.