Judgement

VAIDIALINGAM, J.: This is an appeal, by special leave in which the appellants challenge the propriety and correctness, of the order of the Madhya Pradesh High Court confirming their conviction, under Section 120B, I. P. C., 1878 (Act 1 of 1878), (hereinafter called the Act). Appellants 2 and 3 are the sons of the first appellant, and the 4th appellant since deceased, was his nephew.

2. On receiving information, that opium was being smuggled and secretly kept, in the house of the appellants the Sub- Inspector of Police Station Malharganj, Indore with a police party, raided their house, on September 19, 1960, and recovered a fairly large quantity of opium of about 2 maunds, 14 seers and 14 chhatacks. The appellants were arrested and charge-sheeted, for having committed offences, under Section 120B, I. P. C. and Section 9 (a) of the Act. They pleaded not guilty. Their defence was that each of them was living separately, and they were not also in the house, when the opium was stated to have been recovered. The deceased, 4th appellant, raised a plea that one Altaf had come, in the morning of September 19, 1960, at about 9 A. M., and told him that the police were after him, and that he wanted to throw a bundle, which was, in his possession, in the house of the appellants. Accordingly, Altaf threw a bundle, in the court-yard of the house of the appellants.

3. The Additional City Magistrate, Indore, accepted the case of the prosecution and rejected the plea of the appellants. The trial Magistrate found that the opium was recovered from the possession of the appellants, who had no permit or licence, for its possession or transportation, and he also found that the appellants, along with others had conspired to possess the said opium. On these findings, each of the appellants, was convicted, under Section 120B, I. P. C., and Section 9 (a) of the Act and sentenced to undergo two years rigorous imprisonment in respect of each of the offences, the sentences to run concurrently.

4. The appellants challenged their conviction and sentence, before the First Additional Sessions Judge, Indore, in Criminal Appeal No. 118 of 1968. The learned Sessions Judge, agreeing with the conclusions, arrived at by the trial Court, dismissed the appeal.

5. The appellants, again, moved the High Court of Madhya Pradesh, Criminal Revision No. 181 of 1964, to set aside their conviction; but the High Court also, by its order, dated December 28, 1965, which is under attack, dismissed the revision.

6. On behalf of the appellants, Mr. C. L. Sarin, learned counsel raised three contentions: (1) that there is no evidence of any conspiracy, to attract S. 120B, I. P. C.; (2) neither the High Court, nor the two Subordinate Courts, have considered the vital question, viz., whether the evidence establishes that the four appellants were in conscious possession of the opium, recovered from the house; and (3) the trial which was held, under Section 251A, of the Code of Criminal Procedure, was vitiated, as it should have been properly held, only under S. 252, Cr. P. C.

7. So far as the first two contentions are concerned, in our opinion, it is really an attack, on the concurrent findings, recorded by the Magistrate and, on appeal, by the Sessions Judge, and which have been accepted by the High Court in revision. The Magistrate, as well as the learned Sessions Judge, have posed, one of the questions for consideration, as to whether the appellants can be considered to have been in conscious possession of the opium, recovered from the home. It is, in considering this question, that the plea of the appellants, at each of them was living separately in the house and that they were not present, at the time of the recovery, and that it was possible, for some outsider, to have thrown the opium recovered, into the court-yard of the home, have all been considered, in detail, and findings, recorded, against the appellants. The chance of any outsider, having thrown this article in the cour