RAM LABHAYA J.: The petitioner Rupan Konwar was convicted u/s. 9 (a), Assam Opium Act, and sentenced to undergo 6 months f R. I. by a Magistrate (1st Class), at Dibrugarh. His conviction was upheld by the Ses. J., U. A. D. He, however, altered the sentence. The substantive sentence of imprisonment was re­duced to. 5 months and a fine of Rs. 500/- was imposed instead of the remitted part of the sentence. In default of payment of the fine, the petitioner was ordered to undergo R. I. for one month. The petitioner has come up on revision to this Court. Interference on revision is sought for on the ground, first that the conviction is not maintainable & secondly, that the modi­fication in the sentence introduced by the learned Ses. J. amounts to enhancement of the sentence which the learned Ses. J. had no power to order. (2) The prosecution case was that on the morning of 13-7-1947 petitioner Rupon Konwar & Nabin, his companion, were seen going along the road near Tengakhat Bazar. They were stopped in front of the house of Ramjatan, a prosecution witness, by the Excise Jamadar Sarubar Gogoi, P.W.I. He wanted to search the persons of the petitioner & his companion & called two witnesses. When the petitioner saw then coming, he threw away a packet in a road side ditch. The Excise Jamadar, after getting his own person searched, entered the ditch & brought out the opium and the paper wrapper which had covered it. At the trial the prosecution case was fully supported by the Excise Jamadar & two witnesses Ramjatan & Mahananda Kakati. (3) Five defence witnesses were examined. These witnesses tried to show that P. W. 2, Ramjatan Das, was an interested person & that the Excise Jamadar was harbouring a grudge against the accused. The suggestion was that opium had been planted on account of enmity. Another" allegation made by a defence witness was that Ramjatan, the prosecution witness, was arrested in the first instance & later on released. From this it was sought to be inferred that it was not known who really threw the opium in the ditch. (4) The evidence was considered in 'he Courts below & the findings arrived at in these Courts were that the circumstances of the case exclude the possibility of planting. The quan­tity of opium discovered is one of these cir­cumstances. From this it was sought to be inferred that it was not known who really threw the opium in the ditch. (4) The evidence was considered in 'he Courts below & the findings arrived at in these Courts were that the circumstances of the case exclude the possibility of planting. The quan­tity of opium discovered is one of these cir­cumstances. Such a quantity would be difficult to obtain for purposes of planting. The alleged enmity of the accused with the Jamadar & P. W. 2 also was not found to have been sub­stantiated. There is again no reliable evidence to show that P. W. 2 was arrested in the first instance in connection with this occurrence as held in the Courts below. We have been taken through the evidence by the learned counsel for the petitioner & we see no reason to differ from any of the findings arrived at by the Courts below. (5) The conviction in these circumstances must be maintained. (6) As regards the question of sentence, the contention of the learned counsel that the modi­fication introduced by the learned Ses. J. in the sentence has the effect of enhancing it must prevail. By reason of the modification the petitioner shall have to undergo R. I. for one month in default of payment of fine. But, even if he does undergo R.I., the fine could be realised from his property later. The result would be that in case of his inability to pay the fine he shall undergo R.I. for 6 months & his liability to pay the fine would remain. The modification in these circumstances does bring about enhancement of the sentence. This view of the law finds support from 'Queen Empress v. Ishri', 17 All 67. It is obvious that the learned Ses. J. had no power to enhance the sentence when hearing the appeal. In enhancing the sentence he, exceeded his jurisdiction & his order to this extent cannot be sustained. (7) We, therefore, allow this petition of revi­sion & remit the sentence of fine. The sub­stantive sentence of imprisonment for 5 months alone shall stand. (8) THADANI C. J.: I agree. Revision allowed.