R.L. Narasimham, C.J.
1. This is a reference by the Sessions Judge of Ganjam recommending the quashing of a proceeding under Section 9(a) of the Opium Act (Act 1 of 1878) pending against the petitioner in the Court of a First Class Magistrate at Berhampur.
2. On 29-4-59 the Excise S. I. of Berhampur submitted a report under Section 20G of the Opium Act to the Sub Divisional Magistrate, Berhampur stating therein that the petitioner had committed an offence under Section 9(c) of the Act. The petitioner was described as a resident of Cawnpur, but it was mentioned that he was arrested at Berhampur on the 11th April, 1959. It was further stated that some bags containing opium capsules were sent by railway from Cawnpur to Berhampur by the petitioner addressed to himself; and that these were seized by the Excise Staff. Having stated these facts the report of the Excise Sub-Inspector further added that in the opinion of that officer the petitioner was guilty of 'illegal export of opium capsules'. Along with the said report seizure lists in form C-2 were enclosed giving particulars of the bags of opium capsules seized at Berhampur Goods Shed and Parcel Godown. The consignment was booked by the petitioner to himself.
3. The learned Magistrate thought that he could proceed under Section 252 of the Criminal Procedure Code. An objection was filed before him on behalf of the accused to the effect that the offence of 'export of opium' was committed at Cawapur in Uttar Pradesh which was outside the jurisdiction of his court. The learned Magistrate thought that the offence of 'import of opium' into Berhampur was committed within his jurisdiction and as the prosecution report referred to Section 9(c) of the Opium Act which included both export and import he could proceed with the trial of the accused for the offence of 'unlawful import of opium' into Berhampur.
4. The learned Sessions Judge, in his order of reference pointed out that the Magistrate's view was wrong, that in the light of the procedure prescribed in Section 251A, Cri. P. C. it was not open to the Magistrate to examine witnesses before framing a charge and that on the basis of the prosecution report the only offence mentioned against the accused was the offence of 'unlawful export' of opium. He therefore observed that as this offence was committed at Cawnpur outside the territorial jurisdiction of the Magistrate at Berhampur, the entire proceeding should be quashed.
5. The learned Sessions Judge has clearly misdirected himself. Two important questions arise in this connection -- Firstly, assuming that the procedure under Section 251A of the Criminal Procedure Code should be adopted in this case, is the Magistrate bound by the description of the offence as given by the Excise Sub-Inspector in his report? Secondly, does the aforesaid section apply to this case at all?
6. It is obvious that the opinion of the Investigating officer, (whether he be a police officer or an Excise Officer) as regards the nature of the offence committed by an accused, cannot bind the Magistrate even when he adopts the procedure prescribed in Section 251-A CR. P. C. The investigating officer's primary function is to collect the necessary facts and on those facts as disclosed in the prosecution report, it is the duty of the Magistrate to apply the law and frame a proper charge, mentioning therein the correct provision of the statute applicable.
Here the facts disclosed to the Magistrate were that the petitioner sent capsules of opium by rail from Cawnpur to Berhampur, the consignor and the consignee being himself, that the goods were subsequently seized at Berhampur Railway Station and the petitioner was also arrested in Berhampur town. On these facts the offence of unlawful export of opium can be said to have been committed at Cawnpur and the offence of unlawful import of opium, at Berhampur. In this connection I may quote the following observations in Munshilal v. Emperor, AIR 1922 All 21:
'I say nothing to discredit the view that a person who exports from outside the United Provinces to a warehouse inside the United Provinces of which he is the real proprietor or temporary possessor, even under a false name, is in tact committing an offence under the Act, of importing into the United Provinces, although he is also the person who exported from outside'.
It was also pointed out in Gobind Ram v. Emperor, AIR 1924 All 558 that a person who imported must be the person who was intending or had the right to take delivery or desired to take delivery inside the area. These two decisions have been followed in a later decision of the Calcutta High Court reported in Legal Remembrancer, Bengal v. Ludur Chandra, AIR 1932 Cal 465.
In view of the presence of the petitioner at Berhampur and the fact that the railway receipt showed him as the consignee thereby making it clear that he had the right to take delivery of the opium parcel, it must be held prima facie that he imported opium into Orissa from Uttar Pradesh, which was also an offence punishable under Section 9(c) of the Opium Act. The mere fact that in the prosecution report the Excise Officer while describing the offence stated that it was illegal 'export' of opium would not preclude the Magistrate from framing a charge correctly, namely, 'unlawful import' of opium on the basis of that report.
7. But the more important question for decision is whether when a person is prosecuted for an offence under the Opium Act on the basis of the report of an officer who conducted an investigation under that Act the provisions of Section 251A Cr. P, C. are applicable or else whether the provisions of section 252 Cr. P, C., and the succeeding sections alone would apply. The answer to this depends on whether when a person is prosecuted for an offence under the Opium Act the case can be said to be 'instituted on a Police Report'. Admittedly the prosecution report was submitted by the Excise Officer who investigated this offence under the provisions of the Opium Act. Section 20-G of the Opium Act reads as follows:-
'20-G. Jurisdiction of a magistrate on receipt of report from Excise Officer etc.
When an officer of the Excise, Police or Customs Department forwards in custody any person accused of an offence under this Act to the Magistrate having jurisdiction to try the case, or admits any such person to bail to appear before such a Magistrate, he shall submit a report setting forth the name of the accused person and the nature of offence with which he was charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such magistrate any article which it may be necessary to produce before him. Upon receipt of such report the Magistrate shall enquire into such offence and try the person accused thereof in like manner as if such report is a report in writing made by a Police Officer, under clause (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure, 1898.'
In view of this section it must be held that the report of the Excise Sub-Inspector comes within the scope of Clause (b) of Sub-section (1) of Section 190, Cr. P. C. The next question is whether such a report is a police report, for the purpose of section 251-A Criminal Procedure Code. There is a recent interesting decision of the Calcutta High Court on this point with which, with respect, I entirely agree. In that decision reported in Prem Chand Khetry v. The State, AIR 1958 Cal 213, the difference in language between Section 190 (1) (b) on the one hand and Sections 251A and 207A, on the other, has been pointed out and it was further indicated that in view of the amendment to Section 190 (1) (b) Cr. P. C. consequent on the previous decisions of the High Courts, it must be held that the report contemplated in Section 190 (1) (b) is wider than a 'Police report' referred to in Section 173(1) Cr. P. C. which alone would come within the scope of Sections 251-A and 207-A Cr. P. C.
The question has been fully discussed in the aforesaid decision and it is unnecessary to repeat those reasonings here. Section 20-G of the Opium Act was also considered and it was held that though by virtue of that section the prosecution report for an offence under that Act may amount to a report of the nature contemplated in Section 190 (1) (b) Cr. P. C. it will not be a 'police report' for the purpose of Section 251A Cri. P. C. or Section 207-A Cri. P. C. Hence the normal procedure under Section 252 Cr. P. C. and the succeeding sections should be adopted in this case.
8. Whether a report of an Excise Officer under the provisions of the Bihar and Orissa Excise Act would amount to a police report within the meaning of Section 251-A Cr., P. C. does not arise for decision in this reference and it is left open.
9. The learned Sessions Judge has referred to a single Judge decision of Madhya Pradesh High Court reported in Abdul Rehman v. The State, AIR 1959 Madh Pra 285 where it was held that the procedure under Section 251-A should be adopted when a person is prosecuted for an offence under the Opium Act. In that decision, however, the difference in language between Section 190(1)(b) on the one hand and Sections 251-A and 207-A on the other, was not noticed and with great respect I would prefer the Division Bench view of the Calcutta High Court in AIR 1958 Cal 213, to the Single Judge's view in the aforesaid Madhya Pradesh case.
10. For the aforesaid reasons I discharge the reference and direct the Magistrate to proceed with the trial under Section 252 of the Criminal Procedure Code and the other succeeding sections of that Code.