H.R. Krishnan, J.
1. The applicant in revision has been convicted under Section 9(a) of the Indian Opium Act, as amended by the Madhya Bharat Act 15 of 1955 and sentenced to suffer rigorous imprisonment for a year and a half and to pay a fine of Rs. 500/-with further rigorous imprisonment in default. This was for the possession without licence of about 4 seers of raw opium, by the applicant in his house and seized by a raiding party consisting of excise officers, police officers and two respectables (panchas) of the locality. The applicant set up a plea that the bag containing 4 seers, or to be more precise 3 seers and 14 chhataks opium, was openly taken into the house by a head constable, a member of the raiding party, and planted there. This was disbelieved both by the Magistrate and by the Sessions Court.
2. The applicant has come here repealing the story of planting which is of course a plea of fact, and adding the following grounds of law (1) that the Madhya Bharat Act 15 of 1955 is ultra vires of Article 254 of the Constitution even though it had been reserved for consideration by the President and his assent obtained (2) secondly, the procedure adopted for trial was one under Section 251 A. Cr. P.C., which was illegal as the one in Section 252; Cr. P.C., should have been followed. The applicant has been prejudiced because he got only one opportunity to cross-examine and not two as he could have got had the proceedings been under Section 252 Cr. P.C.
In this connection it is stated that the view taken by the Calcutta High Court in Premthand Khetri v. State, 1958 Cr LJ 622 : (AIR 1958 Cal 213), should be adopted by this Court also in preference to the view hitherto now (sic) that cases on reports by excise officers are really cases on Police report and not ones on complaint (3) thirdly, that the trial was irregular because the prosecution before the Magistrate was conducted by an Excise Officer who was no other than the officer who conducted the investigation and was himself a witness, and (4) fourthly, it is alleged that there are some irregularities such as (a) non-recording by the police of the information leading to the search (b) that the panchas did not enter the house (c) that the panchas were not from the immediate neighbourhood and (4) that one member of the raiding party, head constable Ramsingh, had not been examined.
3. On the defence that the opium had been planted it is unnecessary to say anything as it relates to facts and has been considered by the trial Court and the appellate Court. It is significant that it was not suggested that one member of the raiding party managed to enter into the house openly with the canvas bag containing 4 seers or opium. It is also neither alleged nor suggested that immediately on the recovery, the applicant himself called out that a member of the raiding party walked in with the bag and planted it in the house. Any way the story of planting was disbelieved by both the lower courts and need not be re-agitated in this revision.
4. Then it is urged that the State Legislature of Madhya Bharat was constitutionally incompetent to amend Section 9(a) of the Indian Opium Act and thereby enhance the punishment, 'Opium' being entry No. 59 in the Union List. If the amendment of the Madhya Bharat is held to be ultra vires then the punishment could only be one year's rigorous imprisonment or less under Indian Opium Act. This argument fails to note that entry 59 in List I is not exhaustive in regard to opium. Actually the control by licence or otherwise of the possession, and storage and sales within the country of the opium is governed by entry 19 on the concurrent list. Entry 59 List I is 'Cultivation, manufacture and sale for export of opium', List 3 concurrent entry 19 'Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium'.
The provision for the punishment of a person who possesses opium without licence has nothing to do with cultivation or manufacture or sale for export. It is outside these three and as such it comes under the general entry (19 in List III )--regarding drugs and poisons. When Parliament enacts in regard to cultivation or manufacture or sale for export of opium it is acting in exercise of powers given by entry 59 in the Union List; but when it enacts in regard to other matters concerning opium, it is in accordance with entry 19 in the Concurrent List. Actually the Madhya Bharat Opium Act 15 of 1955 amends the provisions of Indian Opium Act not in regard to matters mentioned in (entry 59) List I, but in regard to some others. It was also reserved for the President's consideration under Article 254(2) as it was an amendment by the State Legislature of the provisions in the existing law on the subject in the concurrent List. President's assent was accorded, on 5-6-1955. Thus there is no force in the argument that the Madhya Bharat amendment is ultra vires and punishment could not exceed one year's rigorous imprisonment
5. Whether the applicant should have been tried in accordance with Section 252 of the Cr. P.C. is a question of no practical effect at this stage. He has had open trial with opportunity for cross-examination, which he has availed of, and examination under Section 342 Cr. P.C., and option to bring defence witnesses. His argument is that he should have been tried not in accordance with Section 251A as he has actually been, but in accordance with Section 252 Cr. P.C. when he could have had the opportunity to cross-examine on two occasions once before and again after charge.
6. The settled view of this High Court is that a case on an excise officer's report is exactly on the same footing as a case on the report of a police officer, and not as one on complaint, that is one cognizable under Section 190(b) and not under 190(a) of the Cr. P.C. The procedure indicated in a warrant case of the first type is one set out in the Section 251A and that in the latter, is the one in Section 252 Cr. P.C. A reference has been made to 1958 Cr LJ 622 : (AIR 1958 Cal 213). In that (case?) are pointed out certain apparent inconveniences in applying Section 251A to cases on the excise officer's report with the suggestion that such cases may be tried in accordance with Section 252. In this State at all events cases of this class are only on 'police reports'.
Any way, as far as the accused is concerned and even if the procedure indicated in Section 251A is followed in a case more properly coming under Section 252 there is no prejudice, the difference being on the manner in which the Court arrives at the prima facie case. The rationale behind Section 251A is that in that class of cases there, has already been an investigation (elaborate or simple) by a public authority, which has recorded all the material on which the charge is going to be framed. There is a report and often a record of the statement of witnesses and a list of the recovered properties and the like. The Magistrate has to satisfy himself that these particulars have already been supplied to the accused; and then with these materials before him he should be in a position to decide if there is a prima facie case. So, applying his mind to these with or without the examination of the accused he can discharge him if he finds that the materials show that the charge is groundless. If, however, he finds that there is a prima facie case which he is competent to try then he frames the charge; the trial proper beginning only at this stage.
7. In a complaint case, on the other hand, there has been no investigation at the stage at which the accused comes and accordingly the magistrate has himself to examine the witnesses, as it were, in course of an investigation, Now it is open to the accused, who is already present, to show by cross-examination or by argument that the material now recorded is insufficient to support a charge, and to invite the Court to discharge him. Thus in principle there is no difference between the two procedures, the practical difference is that in the one case the material collected by the police during investigation is before the Magistrate, and in the other he had himself to record it after the appearance of the accused. Once the charge is framed and the trial has begun, the fact of the accused person having (or not having) had a chance of cross-examining before charge is of no significance. Thus I hold that for one thing, this case falls under Section 251'A on the view taken by this High Court, and for another, in any event the accused has not been prejudiced.
8. The next is an allegation that the excise officer who was a witness was himself conducting the prosecution. This is not proved from the record. There is nothing wrong in principle if an officer of the Excise Department has been detailed to conduct the prosecution in a class of cases before a Magistrate. But if he has investigated a particular case it is obviously improper for him to conduct it in Court. He will in fact be a witness. But in the present case there is no evidence on this allegation. All that the applicant has got is a Note by the Magistrate, that a witness had pointed out the Prosecuting Inspector himself as the Officer who led the raid. Such mistakes are common, and neither in the Magistrate's court nor in the Sessions Court was this allegation made in so many words. Any way the conviction is not based upon this or that person being the Prosecuting Inspector, but on evidence.
9. The other alleged irregularities can be examined at seriatim. The investigating officer was not at all asked if he had reduced to writing the information leading to the search, nor was the Magistrate requested to satisfy himself that it had been so written down. Certainly the point cannot be agitated at this stage. Again, it does not matter whether the Panchas actually entered the room from which the bag was brought out or whether they saw every thing from outside. What is important is that they should be in a position to see what was going on during raid, and wherefrom the seized property is brought out. In the case of a small house or room this can be done either by entering or seeing from outside. Similarly we do not know, whether Ramsingh was available or within the reach of the Court, when the case was sent up. He was not cited in the report, and no suggestion or prayer was made in this regard.
10. It appears that when the raid was on, the usual large crowd collected in front of the house. The Investigating Officer says that the two panchas came from the crowd; but the panchas say that they came from their respective houses, not in the immediate neighbourhood, but from another mohalla of the small town of Ratlam. The law provides for panchas from the locality, and of some respectability; but not that they should be the immediate neighbours. Often immediate neighbours will not come to witness raids, and the neighbourhood might be such that to get respectable witnesses one has to go a short distance.
11. I find that there is no force in this application. The punishment is not excessive, considering the quantity of opium.
12. The application is summarily dismissed.