1. These are two revision applications, Nos. 50 and 52 of 1951 under the provisions of Section 439, Criminal P.C. No. 50 of 1951 is by one Anwar Hussain and No. 52 of 1951 is by one Haridas Konwar, Anwar Hussain was convicted by a Magistrate of the first class, Dibrugarh, under Section 6, Assam Opium Prohibition Act (Act XXIII 23 of 1947) and sentenced to rigorous imprisonment for 4 months and to pay a fine of Rs. 50, or in default, to undergo further rigorous imprisonment for 2 months. His taxi, ASL 3929, was ordered to be confiscated and sold at a public auction, and the sale-proceeds credited to the Treasury. The applicant Haridas was convicted by the same Magistrate under Section 5(a), Assam Opium Prohibition Act (Act XXIII 23 of 1947) and sentenced to rigorous imprisonment for 4 years and to pay a fine of Rs. 5000, or, in default, undergo, further rigorous imprisonment for 4 months. Three other persona-(1) Purnakanta, (2) Mahendra and (3) Indreswar—were each sentenced under the same section to rigorous imprisonment for Once year, and to pay a fine of Rs. 200 or in default, to undergo further rigorous imprisonment for months. They did not prefer any appeal, nor have they filed any application in revision to this Court.
2. The case for the prosecution was that on the night of 22.3.1950, S.I. of Police Mr. M. Kalita, accompanied by his staff, in the course of his patrol duty came to a place called Khowang at about 9 p.m. at 11.30 P.M. while be was checking up the motor vehicles plying from and to Dibrugarh, he saw a taxi bearing No. ASL 3929, coming from Dibrugarh and going towards Moran. In the Taxi, the S.I. and his party saw the applicant Haridas sitting with Anwar Hussain who was driving the taxi, and three other persons in the rear seat ; he signalled the driver to stop, and ordered the occupants of the taxi to get out ; on searching the taxi, the S.I. and his party I found a canvas bag containing six cakes of opium, and another Bazar bag containing 11 cakes of opium. The S.I. took possession of the opium, arrested the applicants and their companions and, on completion of the investigation, sent up the applicants and their companions under Section 5(a), Assam Opium Prohibition Act (Act XXIII  of 1917). At the trial after the applicant Anwar Hussain had led evidence in defense of two witnesses, tin learned Magistrate altered the charge against Anwar Hussain from one under Section 5(a) to one under Section 6 of the said Act; the charge against the applicant Haridas and others under Section 5(a) of the Act was retained.
3. The defence of the applicant Anwar was that on 22.3.1950, at about it 10.15 or 10.30 P.M. his taxi was standing at; the Dibrugarh Taxi Stand the applicant Haridas and his three companions came up and hired the taxi to go to Moran, for Rs. 50 the applicant Haridas had one bag (Ex. 1) in his hand, and Purnakanta who did not appeal, had another bag (Ex. II) in his hand Haridas took the other bag from Puruakanta and kept both the bags near his feet; near Khowang Bridge, was stopped by the Police, who searched the taxi.
4. The defence of applicant Haridas was that on the night of 23.3.1950, he went to Dibrugarh Station to entrain for Gauhati where he had a case the following day the missed the train and, as he was about to go home, he saw a taxi coming from the Bazar side of Dibrugarh the driver of the taxi, applicant Anwar Hussain, stopped the taxi and asked him where he was going; he said, he had missed the train and was going home; Anwar suggested that ha should get into his taxi as he would be able to catch the train at Moran ; he agreed and sat by Answer's side ; on the way, the Police stopped the taxi and found opium from under the lungi of the driver, Anwar Hussain
5. Mr. J.C. Medhi who appeared for Haridas, has contended that (1) it has not been established that Haridas was in conscious possession of the opium, and that the burden of rebutting the presumption under Section 28, Assam Opium Prohibition Act (Act 23 of 1947), therefore, did not arise; (2) that the learned trying Magistrate has failed to comply with the provisions of Section 231, Criminal P.C. after he decided to alter the charge against Anwar Hussain from one under Section 5(a) to one under Section 6, Prohibition Act of 1947.
6. As we propose to order a re-trial of the applicant Haridas, in view of the trying Magistrate's failure to comply with the provisions of Section 231 Criminal P.C. it is unnecessary to deal with the first contention it must be dealt with by the Magistrate retrying the case.
7. It is an admitted position that the charge against the applicant Anwar Hussain was altered from one under Section 5(a) to one under Section 6, Assam Prohibition Act of 1947, after Anwar bad led evidence of two witnesses in his defence. The learned trying Magistrate bad admitted in his report to the A.D M., Dibrugarh at p 36 of the Paper-Book, that he did not allow Haridas to cross-examine the prosecution witnesses again or to lead fresh evidence in defence, after the charge had been altered against Anwar Hussain.
8. According to the trying Magistrate, he did not allow the applicant Haridas to cross-examine the prosecution witnesses or to lead fresh evidence in his defence because the charge against Haridas himself had not been altered. We do not think that that is a good reason for depriving an accused person of the benefit of the provisions of Section 231, Criminal P.C. It may well be that Haridas was prejudiced in his defence by the alteration of the charge against Anwar Hussain. It was not for the learned Magistrate to decide whether or not an accused is prejudiced in his defence by reason of the alteration of the charge against his companion accused.
9. The objections to non compliance with the provisions of Section 231, Criminal P.C. was taken by the applicant Haridas before the learned Sessions Judge in appeal, but it floes not appear to have been considered by the learned Sessions Judge in his judgment. The omission to comply with the provisions of Section 231, Criminal P.C., when an accused person demands to recall or re-summon and examine with reference to such alteration or addition, any witness or between who may have been examined, is not curable under the provisions of Section 537, Criminal P.C.
10. We accordingly set aside the conviction and sentence passed upon the applicant Haridas and order that he be re-tried in accordance with law from the stage at which the charge against Anwar Hussain was altered.
11. As regards the applicant Anwar Hussain, we think he is entitled to an acquittal, in view of what the learned Sessions Judge has stated in Ids judgment. Section 6, Opium Prohibition Act of 194T, under which the applicant Anwar Hussain Was convicted, is in these terms:
Whoever, being the owner or occupier or having the We of any house, room, enclosure, space, vessel, vehicle or place, knowingly permits it to be used for the com-mission, by any other person, of an offence punishable Under this Act or the rules made thereunder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to two thousand rupees, or with both.
12. In dealing with the case of Anwar Hussain, the learned Sessions Judge has stated:
Assuming, for arguments' Bake, that these two D.Ws. namely, D.Ws. 1 & 2 examined by Anwar, are reliable and accused carried Haridas and his men in his taxi for reasonable fare, whether he bad reasons to know that the bags contained opium or some such Incriminating articles and he gave them a helping hand knowingly, A drive from Dibrugarh to Khowang takes boat half an hour or be, and the car must have left Dibrugarh at about 11 p.m. at night, because they reached Khowang by 11.30 p.m. The Police Sub-Inspector says that the bags Belt of opium though, as a matter of fact, he was not sure at the beginning what the con' tents of the two bags were The other prosecution wit-nesses also deposed to the effect that the contents of the bags were not known before the naps of the bags were opened. I am inclined to accept Mr. Kalita's version and believe that accused Anwar could have smelt opium because the bags were not properly covered up and the oaks were almost exposed except that either a pair of sandals or a shirt covered the same, The cakes were Hot apparently bound or tied, to in one case, it was covered by an oil cloth. I cannot look with favour to a taxiwalla who allows the persons boarding his taxi a short drive to drink in the car, as was apparent from the find of one bottle and a glass smelling liquor. There moat have been over-indulgence to the inmates and may be Haridas who occupied the first bench, That implies that these four persons were or at least Haridas was quite familiar with the driver and he should have good grounds to suspect that they might indulge in some contraband traffic to engage the oar at dead of night for in drive to Moran.
The learned Sessions Judge has, in other words, come to the conclusion that the applicant Anwar Hussain had reason to believe or suspect that the bags contained opium. But it is plain from the language of Section 6, Assam Opium Prohibition Act of 1847 that before an owner or driver of any vehicle can be convicted under Section 6, he must knowingly permit the vehicle to be used for the commission by any other person of an offence punishable under the Act or the rules made thereunder. Reason to suspect or reason to believe, is not enough for the purposes of a conviction under Section 6 of the Act; existence of knowledge alone, and not something less than knowledge, not justify a conviction under Section 6, Opium prohibition Act of 1947.
13. We accordingly set aside the convictions and sentence passed upon Anwar Hussain and set him at liberty. The order relating to the confiscation of the taxi and its sale is also set aside.
14. The Rule is made absolute accordingly. Anwar Hussain's bail bond is discharged.
Ram Labhaya. J.
15. I agree.