Possession and occupation of a house used for opium-smoking and being a member of the smoking assembly constitute guilt under the relevant sections of the Opium Smoking Act.

JUDGMENT :

Panigrahi, C.J. - These are two petitions filed by two persons convicted under Sections 7, 8 and 9 of the Orissa Opium Smoking Act (XVI) of 1947. Duti Dei, Petitioner in Criminal Revision 367 of 1954 has been convicted u/s 8 and 9 of the Act for possessing and keeping a house used for the purpose of opium-smoking, Bhimsen Das, Petitioner in Criminal Revision 405 of 1954, has been found guilty u/s 7 of the Orissa Opium Smoking Act, for being a member of the smoking assembly. Each of the accused persons has been sentenced to four months R.I.

2. The case against Petitioner Duti is that she is the owner of the house in which the assembly was found smoking and that she is running the house for the purpose of carrying on the business of opium-smoking. Her case was that she was not the owner of the house j and she sought to support this plea by a statement elicited from P.W. 3 in his cross-examination in which he said that the house in which the accused persons were found belonged to one Gelhi Bewa. There is no evidence to show how Petitioner Duti Dei was related to Gelhi Bewa, but the Excise witnesses stated that they ascertained from the villagers that the house belonged to Duti Dei herself. P.Ws. 1, 3 and 4 however, admitted that Duti Dei was present when the house was raided by the excise staff, and the assembly was taken by surprise, The incriminating articles found were M.Os. I to IV and these consisted of a smoking pipe, an earthen pan, some pills alleged to be opium and some dry leaves alleged to be used for the preparation of the smoking mixture.

3. Mr. Mohapatra appearing for the Petitioners contends that in the absence of evidence showing that the house belonged to Petitioner Duti she cannot be Convicted u/s 9, nor is she liable for conviction u/s 8 because of her mere presence in the assembly, Section 9 is very wide in language and it is necessary for the prosecution to prove that the place used for the purpose of the assembly was in possession of the person found present, There is sufficient evidence of the witnesses to show that Petitioner Duti Dei was there and occupied the house to whomsoever the house might actually belong, Nor can it be said that Section 8 would not apply to the facts proved, It was found by the Courts below that a pipe and some other apparatus used for the purpose of opium smoking were discovered in the house of Duti, and Section 8 makes the possession of these articles an offence, Four other mal persons who were engaged in smoking were undoubtedly using a pipe or other apparatus, but the possession of the pip was with the owner of the house. Section 4 defines a smoking assembly as an assembly of two or more persons assembled with the common object of smoking opium, or preparing opium for smoking purposes. Admittedly, there were six persons found possession some opium pills and some apparatus for smoking. Duti being one of the members of this assembly is, in my opinion guilty of the charge framed against her.

4. It is pointed out, however, that she is a young woman of 22 years of age and that the sentence of four months R.I. is too harsh. I am inclined to accept this contention and would accordingly substitute a sentence of fine of Rs. 50/-in place of the sentence of imprisonment in default of payment of fine, she will undergo Simple Imprisonment for two months.

5. So for as Petitioner Bhimsen Das is concerned I am satisfied that he was a member of the assembly and his conviction u/s 7 of the Opium Smoking Act, as also the sentence, are proper.

6. Subject to the above modification in the sentence imposed on Petitioner Duti Dei, the revisions are dismissed.

Final Result : Dismissed