1. The appellants in this matter have been convicted by the learned Presidency Magistrate, 6th Court, under Sections 14(a) and 21, 10B and 14(a) of the Dangerous Drugs Act, and have been sentenced to imprisonment and fine. They are all three Chinamen living, in the case of two of them, in a house at Suklaji Street, and that of the third, in Frere Road, Mazgaon. Two of them are ships' carpenters, and the third describes himself as secretary of a Chinese Club.
2. The case against them was that No. 1 was in possession of about two find a half ounces of cocaine worth about Rs. 248, that No. 2 was in possession of five tolas of chandul (a preparation of opium) and twenty-three tolas of madat (opium residue after the preparation of chandul) and that No. 3 was in possession of four grains of cocaine.
3. The unlicensed possession of any cocaine is prohibited by the Act, while Under the rules, chandul prepared from opium lawfully acquired within the limit of weight allowed, may only be possessed to the extent of one-fourth tola for individual comsumption and half a tola for corporate smoking, and so with madat.
3. We have heard Messrs. Coelho and Kaderbhoy for the appellants, and the learned Government Pleader for the Crown, but we think it is Unnecessary now to enter into the merits, for it seems to us the convictions must be set aside on technical grounds, and re-trials must be ordered.
4. The case for the prosecution originally was, that all the three had conspired to traffic in cocaine and opium. After hearing the prosecution evidence, however, the learned Presidency Magistrate framed a charge against accused Nos. 1 and 2 only, under Section 21 of the Dangerous Drugs Act; accused No. 3 being charged under Section 14(a) only of the Dangerous Drugs Act.
5. The facts relied on for the prosecution were that on accused No. l's room being searched, he being there alone at the time and lying on his cot, the cocaine was found secreted in his bedding under his bolster; that against accused No. 2 was that the unlawful excess quantity of chandul and madat was found in the room which he manages as an opium smoking den, in a cupboard of which he supplied the key; while that against accused No. 3 was, that when the same evening he came to the excise-officer in an intoxicated, or at any rate excited condition, and made himself offensive to the excise officials, he was arrested and searched and the four grains of cocaine were found on his person.
6. On these facts it seems clear that in the case of accused No. 3, who is not alleged to have been present in Suklaji Street at all when the other two were in illicit possession of cocaine and opium, or to live there, or to have supplied accused Nos. 1 and 2 with the drugs, or to be anything more than a friend or sympathizer of theirs, there is no causal or logical connection, between the illicit possession of drugs by these two persons at the time the premises were searched, and the illicit possession of cocaine by accused No. 3 at a later time and in another place and in different circumstances. I think that when he came to frame the charge the learned Magistrate should have separated the case of accused No. 3 from those of Nos. 1 and 2, and have tried him separately, for the facts fulfil none of the necessary conditions of Section 239 of the Criminal Procedure Code.
7. But the joint trial of accused Nos. 1 and 2 also is not free from difficulties. The case against No. 1 really is that he is either dealing in cocaine or distributing it, for no one ordinarily possesses so large and so valuable a quantity of this prohibited drug for any other purpose. His possession was in a room different to the one occupied by accused No, 2, and except for their common nationality and profession and residence in the same house, even though accused No. 1 is said to keep his clothes in accused No. 2's room and to be accused No. 2's medium for paying the rent-there is no visible connection between accused No. l's possession of cocaine and accused No. 2's possession of chandul and madat.
8. In fact the case against accused No. 2 is that as the keeper of the smoking den he has allowed his stock of chandul and madat to accumulate beyond the prescribed limit, and there is nothing to show that he has ever had anything to do with accused No. l's traffic, if it is one, in cocaine.
9. On the facts I think there never was from the beginning any logical or causal relation between the offences of these two, so as to invite the operation of Section 239 here also.
10. The joint trial of the three accused was, I think, illegal on these grounds.
11. We have next to consider the authorities quoted before us. They were-Subrahmania Ayyar v. King-Emperor I.L.R. (1901) Mad. 61 : 3 Bom. L.R. 540 Emperor v. Krishnaji Dange : (1932)34BOMLR590 , Emperor v. Jethalal I.L.R. (1905) Bom. 449 : 7 Bom. L.R. 527 and Emperor v. Gopal Raghunath (1928) 31 Bom. L.R. 148 The learned Government Pleader referred to the case of Emperor v. Durga Prasad I.L.R. (1922) All. 223 which is a decision of a single Judge, Stuart J. of that Court, but we think that the Bombay authorities are clear and explicit on the point, and that the illegality here committed is one which vitiates the trial in all the three cases.
12. The joint trial of the three accused being illegal on these grounds, we have next to consider what our order should be. It is clear on the record that there are reasonable grounds for thinking that accused No. 1 was in illicit possession of a very large quantity of cocaine. We think he should be re-tried on the charges against him, and in a separate trial.
13. Accused No. 2 similarly was in possession of chandul and madat well beyond the permissible quantities. He also should, we think, be re-tried separately, when the question of the permissible limits under rules made by the Local Government under the Dangerous Drugs Act may be again considered.
14. The case of accused No. 3 is a little different. But in his case also there seems to be no good reason why there should not be a re-trial. We accordingly direct that he should be re-tried separately from the other two. The fresh trials should be before such Presidency Magistrate, other than Mr. Thacker, as the Chief Presidency Magistrate may direct.
15. Pending the re-trials the accused in this case whose convictions and sentences are set aside may be released on bail on their depositing, in the case of accused Nos. 1 and 2, Rs. 150 cash, and giving security with one surety for an amount of Rs. 450 each. In the case of accused No. 3, on his depositing Rs. 75 and entering into his personal recognizance of Rs. 200 with one surety for a like amount, to appear whenever required till the conclusion of the trial. The fine of Rs. 75 paid by accused No. 3 may be treated as a deposit pending the result of the trial.
16. Criminal Application No. 103 is disposed of by the order in this appeal.
17. I agree. On the point as to the misjoinder of charges, I think, this case falls within the principle recently laid down by this Court in Emperor v. Krishnaji Dange : (1932)34BOMLR590 . It has been held there that where a person is charged with two distinct offences in the same trial not covered by any of the exceptions in Section 233 of the Criminal Procedure Code, that is not a mere irregularity, but it is an illegality which cannot be cured by Section 537 of the Criminal Procedure Code. Here, it is clear, on the charge, as well as on the evidence on the record, that accused No. 3 did not commit any offence which can be said to be either the same offence committed in the course of the same transaction along with others, or a different offence committed in the course of the same transaction along with accused Nos. 1 and 2. The offence with which accused No. 3 is charged consists in possession of four grains of cocaine in his pocket, which was found when a search was made of his person at the police station after accused Nos. 1 and 2 were arrested and taken there.
18. On the case of conspiracy the learned Presidency Magistrate is of opinion that there is no such case proved either under Section 21 of the Dangerous Drugs Act, or Under Section 120B, Indian Penal Code; The latter Section is not mentioned in the charge, but even assuming that section could be invoked, it cannot be said in this case on the evidence that accused No. 3 had committed any offence which was part of the conspiracy between all the accused.
19. The learned Government Pleader has urged that even though there may be a misjoinder of charges it does not follow that in every case where there has been a misjoinder the trial must be set aside. But, on this point, I do not think the case in Subrdhmdnia Ayyar v. King-Emperor I.L.R. (1901) Mad. 61 : Bom. 540 Can be considered as laying down the proposition that where there has been a misjoinder of charges, the accused could be validly tried together if it has not resulted in any prejudice to them. On the other hand, it has been laid down in the case of Emperor v. Krishnaji Dange that it cannot be held that where an accused has been charged with and tried for two offences which cannot be tried together, that is an irregularity which could be cured under Section 537 of the Criminal Procedure Code. The irregularity contemplated by Section 537 of the Criminal Procedure Code is an irregularity in the procedure and not a substantive error of law or a disregard of the mandatory provisions of the Code, and the defect in this trial is not simply a defect in procedure but is one which goes to the root of the substantive provisions of a criminal trial. Even assuming prejudice to the accused is required to be proved, I think accused No. 3 has really been prejudiced on account of his having been tried along with accused Nos. 1 and 2, for a totally different offence on a different occasion. I, therefore, agree that the trial of the three accused together is illegal and on this ground the accused are entitled to be discharged and re-tried separately for the distinct offences with which they have been charged.