Cases referred :

1. State Of Punjab v. Balbir Singh., 1994(3) S.C.C. 299.

2. Mohinder Kumar v. State, Panaji, Goa, Goa, 1998(8) S.C.C. 655.

3. Lamin Bojang v. State of Maharashtra, 1996(4) Bom.C.R. 524 : 1997 Cri.L.J. 513.

4. Vinayak Ramchandra Sakhalkar v. D. Ramchandran, Commissioner of Police, Thane, 1985(2) Bom.C.R. 384 : 1985 Cri.L.J. 1257.

5. Thandi Ram v. State of Haryana, 2000(1) S.C.C. 318.

6. Jayakrushna Parida v. State of Orissa, 1997 Cri.L.J. 2179.

7. Chand Mohd. v. State of Punjab, 1997 Cri.L.J. 810. Advocates appeared : R.P. Joshi, for appellant. B.H. Lanjewar A.P.P., for respondent. S.G. MAHAJAN, J.:---Appellant No. 1 Gangaram Rama Gundkar and appellant No. 2 Sou. Laxmibai w/o Gangaram Gundkar, who were the accused No. 1 and 2 respectively in Special N.D.P.S. Case No. 22/1993, were convicted and sentenced by the learned Special Judge, Buldhana. Accused No. 1 Gangaram was convicted of the offence under section 20(b)(i) of N.D.P.S. Act and was sentenced to suffer R.I. for 4 years and to pay a fine of Rs. 2,000/- or in default to suffer R.I. for one year more. Accused No. 2 Smt. Laxmibai was convicted of the offence under section 29 of the N.D.P.S. Act and was sentenced to suffer S.I. for one year and to pay a fine of Rs. 500/- or in default to suffer S.I. for 3 months more. Both the accused preferred the instant appeal challenging the order of conviction and sentence passed against them as above. During the pendency of this appeal accused/appellant No. 1 Gangaram was reported to be dead. So the appeal against him stood abated and the order notifying the abatement was passed by this Court on 8-6-2001. Thus accused No. 1 Smt. Laxmibai is the only appellant in this criminal appeal.

2. The case of the prosecution as is revealed from the evidence is as below: (A) On 11-10-1993 one Head Constable Sopan was Station Diary Incharge at Police Station Amdapur District Buldhana. On that date at 4 a.m. P.S.I. Kharode who was attached to Police Station Amdapur took over the charge of station diary. On taking over the charge he received an information that both the accused in this case were possessing Ganja in their house at Mangrul and they were going to proceed for its sale at the outstation. P.S.I. Kharode made an entry in that respect in the station diary and gave a wireless message to his superiors. (B) P.S.I. Kharode then caused the panch witnesses to be called. Sk. Haidar and Bhaskar came to act as panchas. The entry in that respect was taken in the Station diary and P.S.I. Kharode, panchas and police staff proceeded to the spot. The raiding party reached Mangrul at 5.15 a.m. On reaching Mangrul, the vehicle was halted at Warkhed square. One Ramrao Ambhore and one Samadhan were called and the information was given to them. Then all of them went to the house of the accused. The door of the house was closed. P.S.I. Kharode gave a call. Accused Gangaram opened the door. He was apprised of the purpose of taking search. He was also asked whether he wanted to be searched in presence of a Gazetted Officer. He denied. The members of the raiding party gave their searches to the accused. (C) P.S.I. Kharode and panchas entered the house. Accused Laxmibai was found present in the house. The house was searched. During the search one bundle of Sari containing Ganja was found in a steel cupboard. So also one small bundle of white cloth was found which was containing 13 packets of Ganja. The Ganja was mixed. P.C. Chandrabhan was asked to bring the weighing scale. Ramrao who accompanied the raid weighed the Ganja. The Ganja weighed 3 kg. & 750 grams. The sample of 250 gm. was drawn. The same was kept in plastic bag and it was sealed. The remaining Ganja, papers, white cloth and sari were put in a polythene bag. The bag was sealed. A detailed panchanama was drawn. The above articles were seized vide separate seizure memo. Both the accused were then arrested. (D) The accused along with property were brought to Police Station, Amdapur. P.S.I. Kharode lodged the complaint (F.I.R.). The crime was registered. P.S.I. Kharode also gave a wireless message to his superiors about the aforesaid raid. The seized article were handed over to Head Moharil in the Police Station. The sample was forwarded to Chemical Analyser, Nagpur for examination. The Chemical Analysers report was received which shows that Ganja was detected in the sample. On completion of investigation, the accused stood charge-sheeted.

3. The charge of the offence under section 20(b)(i) of N.D.P.S. Act was framed against accused No. 1 Gangaram and that under section 29 read with section 20(b)(i) of N.D.P.S. Act was framed against accused No. 2 Laxmibai. The charge was explained to the accused persons and they pleaded not guilty. Their defence was of denial.

4. On considering the evidence and hearing both the sides, the learned Special Judge convicted and sentenced both the accused as detailed earlier. The judgment of the Special Judge is impugned in this appeal.

5. At the hearing before this Court, the learned Counsel for appellant assailed the prosecution case on the following grounds;

(i) The mandatory provisions under section 42(1) proviso and section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short "N.D.P.S. Act" were not complied with;

(ii) The requirement of section 57 of N.D.P.S. Act was not fulfilled and there was a total non-compliance of this provision which vitiates the trial;

(iii) The provision under section 55 read with section 52(3) of N.D.P.S. Act was not followed as the seized article was not deposited by P.S.I. Kharode in the Police Station immediately and the same was retained by him for 8 days;

(iv) The independent witnesses though they accompanied the raid, were not made to act as panchas and though they were cited as witnesses they were not examined by the prosecution.

6. As per section 42(1) of N.D.P.S. Act, if an empowered officer has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug or Psychotropic substance, in respect of which an offence punishable under Chapter 4 has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, he may carry out the arrest or search without a warrant between sunrise and sunset. But if such officer has to carry out arrest and search between sunset and sunrise, he has to record the grounds of his belief as laid down in the proviso to that sub-section. The proviso reads; "Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief." The learned Counsel for appellant submitted that this provision is mandatory. In this connection he cited (1) (State Of Punjab v. Balbir Singh.)1, 1994(3) S.C.C. 299 and (2) (Mohinder Kumar v. State, Panaji, Goa, Goa)2, 1998(8) S.C.C. 655. It was observed in State Of Punjab v. Balbir Singh.; "The object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial." In Mohinder Kumar v. State, Panaji, Goa, Goa also it was observed that under section 42(1) proviso. If the search is carried out between sunset and sunrise, the empowered officer must record the grounds of his belief.

7. In the present case, it is the submission of the learned Counsel for appellants that the raid was conducted by P.S.I. Kharode after the sunset and before the sunrise, but the ground of belief that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender were not recorded by him. The point is, whether the search in this case was made by P.S.I. Kharode between sunset and sunrise. As per the evidence of P.S.I. Kharode, he took over the charge of Station Diary on 11-10-93 at 4 a.m. and soon thereafter he received an information about the possession of Ganja by accused persons in their house at Mangrul. The learned Counsel for appellants submitted that normally the charge of Station Diary is taken by another officer in the morning around 8 a.m., but here in this case he took over the charge at 4.02 a.m. and immediately 4.05 a.m. he received the information about the possession of Ganja. He commented that P.S.I. Kharode was as if waiting for the information. To my mind also, this seems somewhat unnatural. The evidence on record shows that soon after the receipt of information as above, P.S.I. Kharode caused 2 panchas to be called and then the raiding party proceeded for Mangrul. The raiding party reached Mangrul at 5.15 a.m. The panchanama Ex. 17 shows that the house of the accused was encircled by the raiding party at 5.30 a.m. and after that the search was conducted and all the procedure was completed at 7 a.m. The Counsel for appellants pointed out from "Maharashtriya Panchang" that on 11-10-1993 the sunrise took place at 6.17 a.m. A judicial note can be taken of this fact. Although the search continued upto 7 a.m. it had certainly begun at 5.30 a.m., that is to say, much before sunrise. Hence the raid was effected between sunset and sunrise. It was therefore incumbent upon P.S.I. Kharode to record the grounds of his belief as detailed in Proviso to section 42(1) of N.D.P.S. Act, since the provision in that respect is mandatory. No such recording seems to have been made. As it is revealed from the cross-examination of P.S.I. Kharode, he did not know that the warrants are required for arresting the accused and taking search of the premises between the dusk and dawn (sunset and sunrise). The information alleged to have been received by P.S.I. Kharode was taken down by him in the Station Diary and the copy of Station Diary entry in that respect is on record. It is at Sr. No. 6. In that information though it is mentioned that both the accused were going to carry the Ganja at outstation for selling the same, the grounds of belief that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, are not recorded. As already stated above, the receipt of information at the very moment P.S.I. Kharode took over the charge of Station Diary, is doubtful. If the information was received by P.S.I. Kharode well in advance he could have even secured the warrant. The failure on the part of P.S.I. Kharode to record the grounds of belief is fatal to the prosecution case.

8. The learned Counsel for appellant further submitted that there was a non-compliance of the provision under section 42(2) N.D.P.S. Act. The provision reads as below: "Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior". The cases cited by the learned Counsel for appellant on this point are : (1) State Of Punjab v. Balbir Singh., 1994(3) S.C.C. 299, and (2) Mohinder Kumar v. State, Panaji, Goa, Goa, 1998(8) S.C.C. 655. It was observed in State Of Punjab v. Balbir Singh.; "Under section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." In Mohinder Kumar v. State, Panaji, Goa, Goa also the provision was held to be mandatory. In this cited case, the officer concerned did not forward the copy of the grounds to his superior officer as required by section 42(2) of N.D.P.S. Act, because he had not made any record under the Proviso to section 42(1) of the Act. In the present case also the grounds of belief were not recorded by P.S.I. Kharode. So, there was no question of sending any copy of grounds of belief to the immediate official superior. In this sense there was a total non-compliance of the provision under section 42(2) of the Act.

9. The prosecution has placed reliance on the wireless message alleged to have been sent by P.S.I. Kharode to his immediate official superior in respect of the information entered by him in the station diary, for showing the compliance of section 42(2) of the Act. The said wireless message is at Ex. 29. The learned Counsel for appellant submitted that sending a wireless message in respect of the information taken down by the officer concerned is not a compliance of the provision of section 42(2) of the Act. According to him, what is required to be sent to the immediate official superior is the copy of the information which is taken down in writing or the copy of grounds of belief. He submitted that the wireless message is not a written communication and the same is an oral communication. On the point that oral communication is not a compliance of the abovesaid provision, the learned Counsel for appellant cited the decision in (Lamin Bojang v. State of Maharashtra)3, 1996(4) Bom.C.R. 524 : 1997 Cri.L.J. 513. In this cited case, it was held that the provision requiring to forward a copy of information is mandatory and a written or documentary information is to be forwarded to superior officer and not an oral information. In my view, a wireless message if not recorded at the other end is practically an oral information and sending the same is not a sufficient compliance of the provision under section 42(2) of N.D.P.S. Act. In such event, wireless message would be on the same footing as an oral information.

10. Even if it is taken that sending a wireless message is a compliance of the provision under section 42(2) of the Act, in the present case there is no proof showing that such wireless message was actually sent. There is no proof of despatch of wireless message. The entries in the station diary dated 11-10-1993 which are at Ex. 30 do not contain any entry to the effect that a wireless message was sent by P.S.I. Kharode to his immediate official superior in respect of the information alleged to have been received by him. Only the text of wireless message is placed on record which is at Ex. 29. The entries up to the handing over of charge of station diary to Head Constable Sopan by P.S.I. Kharode are placed on record at Ex. 30; but no such entry about sending the wireless message is found therein. The evidence of P.S.I. Kharode shows that the register of wireless messages is maintained in the Police Station. But the same was also not produced before the Court. As per the learned Counsel for appellant, in order to lead the proof about the sending of a copy to the immediate official superior, the prosecution is required to prove that such communication actually reached the superior official. The meaning of the words report the fact is explained in (Vinayak Ramchandra Sakhalkar v. D. Ramchandran, Commissioner of Police, Thane)4, 1985(2) Bom.C.R. 384 : 1985 Cri.L.J. 1257. The authority cited by the learned Counsel is in relation to National Security Act, but what is the communication is explained in this cited case. It was observed that unless the report sent by the State Government under section 3(5) of National Security Act is received by the Central Government, it cannot be said that the fact of detention together with the grounds on which the order has been made is communicated or reported to the Central Government within the meaning of section 3(5) of the Act. The proof showing that the wireless message actually reached the official superior is also absent in the present case. At least the prosecution should have adduced the proof of despatch of wireless message.

11. The learned Counsel for the appellant also further submitted that there was also a violation of the provision under section 57 of N.D.P.S. Act. Section 57 speaks; "Whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." As per the learned Counsel, there was a total non-compliance of this provision. provision of section 57 relates to the steps to be taken by the officers after the arrest or seizure. As per the State Of Punjab v. Balbir Singh., this provision is held to be directory. It was observed that the violation of the provision by itself will not invalidate the trial or conviction, but the Court has to examine the effect of such violation. It has to be shown that such non-compliance has caused prejudice and has resulted in failure of justice. It was also observed in this cited case that the officers cannot totally ignore the provision and if there is no proper explanation for non-compliance or where the officer totally ignores the provision that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing this aspect in view. In the present case, as per the prosecution, the provision of section 57 was followed by making a report by sending a wireless message which is at Ex. 32. The submission of the learned Counsel for appellant in this case is that section 57 of N.D.P.S. Act contemplates a written report of all the particulars of arrest and seizure and not an oral report and a wireless message is on the same footing as an oral report. Further it is submitted that there is no proof showing that the said wireless message was actually despatched and the same reached the official superior. As already stated above, the Investigating Officer, P.S.I. Kharode did not produce the register of wireless messages in the Court nor did he prove the despatch of the said wireless message.

12. A perusal of the said wireless message Ex. 32 shows that it is not a full report as contemplated by section 57 of N.D.P.S. Act. The learned A.P.P. submitted that the complaint (F.I.R.) lodged by P.S.I. Kharode in the Police Station after the search and seizure contains full particulars. However, the copy thereof is not shown to have been sent to immediate superior official. The learned Counsel for appellant cited some other authorities also on the point of compliance of section 57 of the N.D.P.S. Act. In Mohinder Kumar v. State, Panaji, Goa, Goa, it was observed that in Balbir Singhs case it is stated that the provisions of sections 52 and 57 of the Act which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In (Thandi Ram v. State of Haryana)5, 2000(1) S.C.C. 318, the conviction was held to be bad in law as the provisions of sections 55 and 57 of N.D.P.S. Act were not complied with. In (Jayakrushna Parida v. State of Orissa)6, 1997 Cri.L.J. 2179, there was no evidence to show that a full report of search, seizure and arrest was sent to the official superior within 48 hours of the detention as required under section 57 of the Act. It was observed that by not submitting the full report about the search, seizure and arrest, the appellant was deprived of testing the truthfulness of the evidence adduced by P.W. 9 with reference to the report contemplated under section 57 and to that extent the appellant was prejudiced in making his defence.

13. The raid and search in this case was conducted on 11-10-1993 and the seizure of contraband articles was effected during the said search. The evidence of P.S.I. Kharode shows that the sample of contraband was drawn. He testified in the cross-examination that the seized articles were deposited by him with the Head Moharir on the same day and the entry was also taken by the Head Moharir in the register. Head Moharir A.S.I. Bhaskar Kasture however admitted during his cross-examination that in the aforesaid entry he had corrected the date 19 as 11. This indicates that the articles were deposited by P.S.I. Kharode with Head Moharir on 19-10-1993, but subsequently the date was corrected and the articles were shown to be deposited on 11-10-1993. Head Moharir A.S.I. Kasture when confronted with the said correction admitted that the articles were received by him on 19-10-1993. Thus, it is clear that although the search was made by P.S.I. Kharode on 11-10-1993, the articles were in his custody till 19-10-1993 and he handed them over in the custody of Head Moharir on 19-10-1993. As per section 52(3) of N.D.P.S. Act, every person arrested and articles seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to (a) the officer incharge of the nearest Police Station or (b) the officer empowered under section 53. The requirement of the above provision is that the arrested person and the seized article should be forwarded to the abovesaid authorities without unnecessary delay. As per section 55 of N.D.P.S. Act, an officer incharge of a Police Station has to take charge of and keep in safe custody pending the orders of the Magistrate all the articles seized under the Act which may be delivered to him. P.S.I. Kharode had effected the raid, search and seizure. That time he was absent from the Police Station. While proceeding to Mangrul for raid he had handed over the charge of Police Station to some other officer. So on return from the raid with the seized articles, he should have immediately handed over those articles to the officer who was incharge of that Police Station at that time. He did not do so, nor did he hand over the articles to Head Moharir and he retained them with him till 19-10-1993.

14. It may be said on the side of prosecution that P.S.I. Kharode being the Police Station Officer, himself would be an officer incharge of a Police Station when he would be present in the Police Station, and therefore, he was entitled to keep the custody of the seized articles after he returned to the Police Station. However, his own evidence is that he handed over the custody of the seized articles to Head Moharir on the same day i.e. on 11-10-1993, whereas this fact is found to be incorrect. The evidence discussed earlier clearly shows that he retained the seized articles in his custody till 19-10-1993 and then handed them over to Head Moharir. When he was having the custody of the seized articles, he could have fairly stated so. But the alternations were made even in the Malkhana register showing that the custody of the seized articles was handed over on 11-10-1993. This creates a suspicion and the possibility of tampering the seized articles including the sample cannot be excluded.

15. The last submission of the learned Counsel for the appellant is about the non-examination of independent witnesses. The evidence on record is that on reaching village Mangrul, the vehicle was halted at Varkhed square and Ramrao Ambhore and Samadhan Jadhav were called. As mentioned in the Panchanama Ex. 17, Ramrao Ambhore is a respectable person of Mangrul and Samadhan Jadhav is the Police Patil of Babulgaon (Mangrul Navghare). So, these are respectable persons and they were the independent witnesses. Although they are alleged to have accompanied the raiding party during the search of the premises of the accused, none of them was shown as a witness on the panchnama. Further although these persons are cited as witnesses in the charge-sheet, they were not examined by the prosecution. Both of them are the residents of Mangrul where the raid, search and seizure took place. Instead of citing these two respectable persons as panchas on the panchnama, Shaikh Haidar and Bhaskar Pakhare who are from village Amdapur itself were made to act as panchas. Out of them Bhaskar Pakhare was examined by the prosecution. His evidence shows that he was prosecuted for an offence under section 302 Indian Penal Code. Although the trial in that case was concluded in July 1993 i.e. before the raid in this case, the possibility of the witness being under the influence of police cannot be ruled out.

16. On the point of necessity of examining independent witnesses, the learned Counsel for the appellant cited; (1) State Of Punjab v. Balbir Singh., 1994(3) S.C.C. 299; (2) (Chand Mohammed v. State of Punjab)7, 1997 Cri.L.J. 810; and (3) Jayakrushna Parida v. State of Orissa, 1997 Cri.L.J. 2179. It was observed in State Of Punjab v. Balbir Singh.; "It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." In the present case, as already stated above, the panch witness examined by the prosecution i.e. Bhaskar Pakhare can be said to be a tainted witness. In fact P.S.I. Kharode called two respectable persons from the same village where the raid was to be effected. Those persons are also alleged to have associated with the police while the raid was conducted. Still, none was examined as a witness. Although they are said to have accompanied the raid, they were not made to act as panchas and were not cited as panch witnesses in the panchnama. So, this can be regarded to be a deliberate failure to comply with the provisions.

17. It was observed in Chand Mohd. v. State of Punjab; "In the present case, there is no reliable and credible evidence on the record to show that A.S.I. Banarsi Dass had made any genuine effort to call for independent public witnesses to witness the search of the appellant or the bag which he was allegedly carrying, particularly when he had ample time, means and opportunity to procure the presence of independent public witnesses to witness the search. This serious omission on the part of the Investigating Officer, in itself, is enough to cast a grave suspicion as regards the alleged recovery of the poppy husk from the possession of the appellant." In the present case, the presence of independent witnesses was actually procured. Still they were not cited as panchas on the panchanama and were not examined as prosecution witnesses. In Jayakrushna Parida v. State of Orissa, certain provisions of N.D.P.S. Act were not followed and the order of conviction and sentence was passed on the uncorroborated evidence of the Investigating Officer which was illegal on vital aspects. For this reason, it was held that the uncorroborated testimony of the Investigating Officer could not be accepted as it was. In the present case also, as discussed already, the mandatory provisions were not complied with. The corroboration to the evidence of the Investigating Officer is sought to be made during the evidence of panch Bhaskar Pakhare who cannot be treated as a witness free from the influence of police. There is no corroboration from independent witnesses as stated above. The testimony of the Investigating Officer i.e. P.S.I. Kharode is, therefore, liable to be rejected on this count.

18. There is some discrepancy in the evidence of the prosecution witnesses and the contents of panchanama Ex. 17 on material point. The evidence of P.S.I. Kharode and panch witness Bhaskar shows that as soon as they reached Mangrul, the vehicle was stopped at Varkhed square and Ramrao Ambhore and Samadhan were called, whereas the recitals in the panchanama Ex. 17 are to the effect that the vehicle was first stopped in front of the house of accused; that time the house was seen closed from inside; hence Ramrao and Samadhan were called through Police Constable. This discrepancy creates a doubt as to at what point of time their presence was procured.

19. The panchanama Ex. 17 shows that the writing thereof was commenced at Amdapur at 4.30 a.m. and the same was concluded at Mangrul at 7 a.m. This means the facts were recorded as and when they occurred. However, the tenor of panchanama would show that this writing was commenced and completed in one stretch only. In this connection, the evidence of P.S.I. Kharode is also worth noting. He did not depose that the drawing of panchanama was started at Amdapur and the facts were recorded as and when they occurred. On the other hand, after narrating the entire story about the raid, search and seizure, P.S.I. Kharode deposed that then a detailed panchanama was prepared and Ex. 17 was the same.

20. The deceased accused Gangaram was charged with the offence under section 20(b)(i) of N.D.P.S. Act for unauthorised possession of contraband Ganja. Accused No. 2 Laxmibai who is now the remaining appellant in this appeal was charged under section 29 read with section 20(b)(i) of N.D.P.S Act on the allegation of having abetted the commission of offence by accused No. 1 Gangaram. The learned Additional Public Prosecutor submitted that there were only two members in the house, one of whom was appellant Laxmibai. The house was consisting of 2 rooms only; So, Laxmibai was supposed to have the knowledge of the contraband which was kept in cupboard in one room. Even if it is accepted that Ganja was found in the cupboard in the house of the accused persons, it must be under the control and dominion of deceased accused Gangaram he being the head of the family. Laxmibai is not charged with the offence of possession of Ganja. She is charged with having abetted the commission of offence by Gangaram. No overt act is alleged on her part showing as to in what manner she was assisting accused Gangaram. The A.P.P. contended that she was supposed to have knowledge about the Ganja in the house. Mere knowledge would not be sufficient to constitute abetment. Probably the learned A.P.P. wanted to raise an inference on the basis of knowledge that accused Laxmibai was assisting Gangaram. However, it cannot be presumed that appellant Laxmibai was also having knowledge of the said Ganja because accused Gangaram could have kept the Ganja concealed in the cupboard. Husband may be involved in the activities even without the knowledge of his wife. Even the fact that some Ganja was found wrapped in the Sari would not necessarily raise an inference that it was to the knowledge of appellant Laxmibai, because it could have been kept so, behind her back and without her knowledge. Thus, apart from the violation of the mandatory provisions discussed above, the prosecution has no case against appellant Laxmibai on merits also. For all the above reasons, appellant Laxmibai shall be entitled to an acquittal.

21. The appeal so far as it relates to deceased accused Gangaram already stood abated. The appeal insofar as it relates to accused appellant No. 2 Laxmibai is allowed. The order of conviction and sentence passed against her is set aside and she is acquitted of the offence with which she was charged. The sentence already undergone by the appellant Laxmibai, if any, shall stand quashed. Fine if paid be refunded to her. Her bail bonds shall stand cancelled.

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