Ramnewas Ram vs Emperor

Varma, J.—Ramnevas Ram, the petitioner before me is a licensee of the ganja shop at Bhabua. He has been convicted under S. 47 (a), Bihar and Orissa Excise Act. 1915, and sentenced to pay a fine of Rs. 100 or in default, six months'' rigorous imprisonment for being in possession of ganja weighing 5� tolas at a place out side the limit mentioned in his license.

The case for the prosecution is that on 17th April 1934, at night the head constable of Bhabua town out-post learning from a spy that smuggling was being carried on and that the spy was prepared to point out the smuggler, the head constable deputed the constable Muhammad Hussain to go along with the spy and arrest the smuggler. The constable and the spy reached near the lorry stand and found the accused standing near a lorry bound for Mohania. The accused with his bundle sat by the side of the driver when the lorry started and the constable also took his seat and sat in the back compartment and went to Bhabua Road Station. When the lorry stopped the constable got down and approached the accused but before he did so he took steps to consult the junior Sub-Inspector who happened to be there and in consultation with him had the bundle of the accused opened and searched. In the bundle three paper packets containing ganja were found two in the folds of a kurta and one in the pocket of the kurta. Having secured the three packets containing ganja, the packets were weighed and found to be 5� tolas in weight along with the paper. Then it appears that a search list was prepared which was supposed to have been signed by the search witnesses at the place where the search took place. But it appears that the search list was not signed while the accused and his bundle was searched, but at Bhabua, the next day. Bhabua Police finding that the offence had been committed within the jurisdiction of the Mohania Police Station, sent the case to be investigated by the Mohania Police, who after usual inquiry submitted a charge sheet. The petitioner was convicted and sentenced, as I have already mentioned, and on appeal, the District Magistrate of Shababad, upheld the conviction and dismissed the appeal.

The petitioner then came up in revision before this Court. The application was presented and the Hon''ble the Chief Justice sent for the record of the case and when the record arrived, Luby, J., issued a Rule in this case. Apart from the story put forward by the defence that the ganja was planted most probably by some agent of one Kamala Prasad who was the licensee of the Bhabua ganja shop the previous year, Mr. Anand Prasad has raised certain points on behalf of his client. The first point is that the petitioner should not have been convicted under S. 47 (a), Bihar and Orissa Excise Act, 1915, because when the packets were weighed along with the papers, one is left, merely to speculate as to what the actual weight of the ganja was and the actual weight of the paper was. According to the Excise Act a man is permitted to have there tolas of ganja in his possession. Unless one is sure about the weight of the paper round the three packets, it is difficult to hold that the quantity of ganja contained in the packets was more than three tolas. This point alone would have been sufficient to dispose of the case, but I find that there is another serious defect in the procedure in preparing the search Mist. I cannot do better than quote the ''opinion of the trial Court itself on this subject. The trial Court says:

It appears that the preparation of the search list (Ex. 8) by the junior Sub-Inspector, Bhabua (P.W. 3) was defective inasmuch as from the evidence of two of the search witnesses (P.Ws. 6 and 7) it is clear that their signature was not taken on the search list immediately it was drawn out at the spot but at Bhabua P.S. on the following day. This of course nullifies the evidentiary value of that document; but this is remedied by the parole evidence led by the prosecution regarding the recovery and seizure of the ganja packets in question in the course of the search of the accused''s bundle.

There is no doubt that the search list was not properly prepared. It may not be a very serious irregularity ordinarily, but in a prosecution under the Excise Act when S. 48, Excise Act, throws the onus upon the accused to explain the possession of certain excisable articles, it is not safe to base a conviction when the strict rules of the search are not followed at the time of seizing the articles, possession of which, is illegal under the Excise Act. There are some other circumstances in the case which deserve notice, e.g., there is no explanation as to why the spy when he went to inform about an offence under the Excise Act, did not inform the Excise Officers within whose jurisdiction this particular type of case falls. Then the Excise Officer who has been examined as a defence witness says that when he tested the amount of ganja in the shop of the accused be did not notice any decrease in the amount of ganja that ought to have been in his shop on that particular dale. But these two matters by themselves may not be of much importance, but taken in conjunction with the failure to weigh the ganja separately, and the preparation of the search list irregularly, in my opinion, raise some doubt about the guilt of the accused. Under the circumstances I would set aside the conviction and sentence, and order that the fine, if paid, be refunded.