JUDGMENT

Ghulam Hasan, J - Sarju Prasad and Har Sahai applicants have preferred this revision application against the order of the learned Sessions Judge of Lucknow upholding the order of the Magistrate of the first class, Lucknow, convicting both of them to undergo three months rigorous imprisonment and a fine of Rs. 50 under Section 9(a) Opium Act, and convicting Sarju Prasad under Section 9(d), Opium Act, and sentencing him to six months' rigorous imprisonment and a fine of Rs. 200 the sentences in the case of Sarju Prasad to run consecutively. Har Sahai was acquitted of the latter charge.

2. The facts leading to their convictions are set out in full in the judgments of the lower Courts and may be briefly given here. Har Sahai and Kalka, son of Sarju Prasad, are partners in a workshop situate in Sarai Mali Khan, Lucknow, where tobacco and oils are manufactured and sold. Sarju Prasad actually lives on the premises while Har Sahai lives in a different house in the city. Sarju Prasad manages the business on behalf of his son Kalka. The site plan (Ex. 20) prepared by the Sub-Inspector shows that the workshop covers a large area with a big compound and some residential quarters. A reference to the site plan will be made in detail hereafter in its proper place. The Excise Inspector of Lucknow had received information that Sarju Prasad and Har Sahai were old smugglers of opium but in spite of his best efforts he had not been able to bring them to book. According to the prosecution case, it was decided to organize a bogus purchase of opium from the workshop of the applicants and subsequently to raid it. Thakur Sultan Singh, the Excise Inspector, approached Mr. Qadri, personal assistant to the Deputy Commissioner of Lucknow, to supervise the bogus purchase and the latter deputed Mr. S.S. Jaffery, I.C.S., for the purpose. According to this plan in the evening of 6th December 1940, Thakur Sultan Singh, accompanied by Mr. Jaffery and one Jani, the bogus purchaser, went to the workshop in Sarai Maali Khan. Mr. Jaffery gave two five-rupee notes, two one-rupee notes and one marked rupee, (Exs. 1 to 5) and rupees two in small coins (total Rs. 15) to Jani for the purchase of opium from the workshop. Mr. JaSery and Jani alighted from the car near the workshop leaving Thakur Sultan Singh behind in the car. Jani was thoroughly searched by Mr. Jaffery before he was asked to enter the premises of the workshop through the main gate of the workshop, where Mr. Jaffery himself stopped. After a short time Jani came out and handed to Mr. Jaffery opium weighing ten tolas (Ex. 6) in a green wrapper saying that he had purchased the ' same from both the applicants. His version was that Har Sahai actually handed the opium to him and he paid the price to Har Sahai, who handed the money to Sarju Prasad. It may be mentioned that the numbers of the notes referred to above which had been given to Jani by Mr. Jaffery had been noted on a paper (Ex. 1) which was signed by Mr. Jaffery and Mr. Qadri.

3. At about 5 A.M. on the following day, Mr. Qadri along with the Excise Inspector and a few others, raided the workshop after giving a search of their persons to Sarju Prasad, who alone was present there. Sarju Prasad was asked to open a locked iron safe in his room with his keys. The iron safe was found to contain cash which included the notes and the marked rupee. In addition three packets of opium weighing three chhatacks were found on, Sarju Parshad's cot. Point 1 in the site plan indicates the safe from which marked notes and rupee were found and Point 2 indicates the cot on which under the carpet three cakes of opium were found. Besides this, opium was also recovered from three different places in the compound, which were dug up, and these are marked as Nos. 4, 5 and 6 on the site plan. No. 4 is a palm tree under which a small tin with three cakes was recovered, containing six chhatacks of opium. No. 5 is a guava tree under which a tin with 11 cakes was found con