This is a petition under S. 439, Criminal P. C. by one Bholanath Sarmah who was convicted by a 1st class Magistrate of Golaghat under S. 9 (a), Opium Act (Act I [l] of 1878) and sentenced to rigorous imprisonment for one year. The petitioner's appeal to the Sessions Judge, Upper Assam Districts, against the con­viction and sentence was dismissed on 29th January 1949.

[2] It appears that on 1st November 1947, the house of the petitioner was searched by the Excise Inspector of Golaghat in the presence of certain witnesses. In the course of the search, a cigarette tin containing 2 tolas of opium was found lying on a projection (chung) in the living room (maralghar) of the petitioner. Another lot of 32 tolas of opium was found in a wooden box wrap­ped up in a newspaper and kept under a wooden seat (barpira) in the petitioner's bed-room. Near the wooden box were found a case containing a weighing balance, an eight anna silver coin, a four anna silver coin and 20 rati weights. These were taken possession of by the Excise Inspector and in due course the accused was sent up for trial.

[3] The appellant's case was that he was not aware of the fact that opium was kept in his house; every night he slept at the Gurjangaon Co-operative Store some 2 furlongs away from his house a girl had come to his house as a guest and had stayed for the night insinuating that the excise party, with her assistance, had brought the opium to his house.

[4] The learned Sessions Judge carefully examined the defence of the accused and, on the strength of the evidence of P. W. 3, Fatik Haza. rika, Assistant Secretary of the District Congress Committee of Golaghat, who had accompanied the Excise Inspector, came to the conclusion that the defence story of planting the opium was incredible. The learned Sessions Judge observed that P. W. 3 had no motive for giving false evidence against the accused, nor had he any motive for planting the opium in the accused a house; there was no enmity between the accused and p. w. 3.

[5] We think the circumstances of this case militate against the suggestion of the defence that the opium found in the house was not there before the arrival of the girl guest who mysteri­ously disappeared, or before the arrival of the excise party. It is not reasonable to suppose that P. W. 3, a thoroughly disinterested witness, •would agree to implicate an innocent person by resorting to criminal association with an Excise Inspector, such as is suggestsd by the defence. The finding of opium in 2 different places also militates against the defence version. Indeed we think the finding of a small quantity (2 tolas) of opium on a projection in the living room of the petitioner tends to suggest that this small quantity was separated from the bulk kept in-Bide the wooden box with a view to sale. If the defence version of foisting the opium is rejected, as we do the knowledge of the presence of opium in his house can reasonably be attributed to the petitioner, the more so when there is evi­dence to suggest that the opium found in the house of the accused was in all probability be­ing offered for sale. The presence of weighing scales and small weights used for selling small quantities of opium lends support to this proba­bility.

[6] It is contended on behalf of the petitioner that, assuming the circumstances of this case tend to suggest that opium was brought to the house of the petitioner for the purpose of sale, it bas not been established by the prosecution that it was brought by the accused or that the accused bad knowledge that it had been brought to his house for that purpose. Now, it appears that the family of the accused consists of his wife, his 2 minor daughters and 2 minor song We think it would be quite a proper inference to draw, having regard to the substantial quantity of opium found in the house, that if this opium was brought to the house and deposited in the bed room of the petitioner, by a member of the family of the petitioner or a smuggler

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