JUDGMENT S.K. Agarwal, J.
1. This appeal arose from an order and judgment passed by Spl./Addl. Sessions Judge, Shahjahanpur in S.T. No. 194 of 1988. By this judgment the appellant was convicted under Section 19 of the Opium Act and was sentenced to pay a fine of Rs. 6800/-. In default of payment of fine, he was directed to serve out a sentence of one year R.I.
2. Brief facts of this case are that Ashiq Beg son of Wajid Beg was granted a licence for 15 acres of land for cultivation in village Baibaha, P. S. Katra, district Shahjahanpur. He cultivated opium, according to the prosecution, over 13 acres of land (.13 hectare). According to Section 19 of the Opium Act as well as N.D.P.S. Act, 1985 he was required to deposit entire produce of opium with the Government through district Opium Officer. He failed to do so and thereby was prosecuted under Section 19 of N.D.P.S. Act. The licence was granted to the appellant at a time when the N.D.P.S. Act was not in force. His licence was under the Opium Act. Since there was an inconsistency in sentencing part of the two acts, therefore, the learned Sessions Judge held that provision of Section 19 of N.D.P.S. Act will not apply to the facts of the present case against the appellant. In these circumstances the appellant was convicted under Section 19 of Opium Act.
3. There is no dispute with regard to the grant of licence to the appellant. It is amply proved from the evidence on record especially from the evidence of P.W. 1, R. P. Gupta, the complainant, P.W. 2 D. D. Kuril, District Opium Officer and P.W. 3 Mahmood Beg, Lumbardar of the village.
4. The only question that requires consideration by this Court is whether any cultivation was done by Ashiq Beg as alleged by the prosecution or not. According to the defence case since the appellant was suffering from leprosy he could not indulge himself in cultivation of opium.
5. The prosecution has come up with a case from the evidence of P.W. 3 Mahmood Beg that the opium was produced by the family members of Ashiq Beg. In the Lumbardar's register, the entry of day to day produce is to be made. It is on record. According to Section 19 of the Opium Act, this register must bear the signature of cultivator as well as Lumbardar but unfortunately in the present case, the entries made in this register by P.W. 3 Mahmood Beg does not bear any signature of the cultivator or appellant Ashiq Beg in column No. 2. Not even any member of his family. The weights are shown in this register, Ex. Ka. 3, but no signatures against each entry for his produce from this appellant were obtained therein. The produce is entered in this register from 3-3-1985 till 9-3-1985. The total product obtained by Ashiq Beg as noted in this register in weight is 3.400 Kg. It is admitted by P.W. 3 Mahmood Beg that Ashiq Beg had suffered from some disease and normally was not present in village during the days of cultivation but used to be away from the village in connection with his treatment. He has also admitted partially the suggestion given by the defence that the agriculture of opium of Ashiq Beg was also damaged due to his absence as a consequence of his ailment. First response to the defence question is that because of ailment of Ashiq Beg, some crop of opium was definitely damaged. Another suggestion was given to this witness that he entered the produce against the name of Ashiq Beg of his own in this register according to the normal day to day produce shown by other opium cultivators. Since the register does not bear the signature of the appellant as required by law, it cannot be believed that they were weighed and entered in the register in his presence. We may not take notice of a single omission treating it negligence of the lambardar but in fact this lapse was there in each and every entry. There is no explanation for its absence from the lambardar.
6. In the circumstances the conviction of this appellant cannot be upheld. There is greater probability that due to his suffering from leprosy he did not indulge himself into opium cultivation and no opium was produced by him. Mahmood Beg P.W. 3 appears to have made false entries against his name in this register. This is probable by his admission that partially the crop of this appellant was damaged because of his absence during these days. The opium crop of the appellant was damaged cannot be therefore rejected out right. There is some force in the submission. He has admitted further that weights entered from 3-3-1985 to 9-3-1985 were sometimes noted against the appellant by estimation. He clearly admitted that appellant's opium was never weighed. It has been entered only on an estimation. There may be some difference in the actual weight and the weight noted therein. He has further admitted that in connection with this treatment, the appellant was living mostly out of the village. When he came back to the village, he was not able to tell. In the circumstances his statement that the opium was produced with the help of the labour in the absence of this appellant by his brother or other family members cannot easily be accepted if it was produced by his brother or his other family member what prevented the lambardar from obtaining signature of any one of them in this register. In the circumstances the appellant is entitled to the benefit of doubt.
7. In the result this appeal is allowed. The appellant is acquitted of the charge under Section 19 of the Opium Act. His sentence is set aside. He is on bail. His bail bond is cancelled and his sureties are discharged. If fine is already deposited he is entitled to its refund.