1. This is a revision against the appellate judgment of the Sessions Judge, Ganjam-Nayagarh, dismissing the appeal of the petitioner and maintaining his conviction under Section 47(a) of the Excise Act, read with Section 65 of that Act, and the sentence of three months' Rule I. and fine of Rs. 150/- passed by the Magistrate, First Class, Khurda.
2. The petitioner was prosecuted for being in unlawful possession of illicitly distilled liquor. The case was tried as a summons case and on being examined under Section 242, Cr. P.C., he admitted the recovery of illicitly distilled liquor from his possession and pleaded guilty. In view of this plea no evidence was recorded and he was convicted and sentenced as stated above.
3. Mr. J.K. Mohanty on behalf of the petitioner urged that an offence under Section 47 (a) and (f) of the Excise Act, read with Section 65 of that Act, was triable as a warrant case and that its trial as a summons case has highly prejudiced the petitioner.
4. In my opinion this argument must prevail. In Gaya Prasad v. Emperor, AIR 1932 Nag. 111 (A) it was pointed out that though a first offence under the Excise Act may be triable as a summons case, if the offender is charged with liability for enhanced punishment for having repeated the offence, that offence should be tiled as a warrant case. Also, in an unreported decision of this Court in Criminal Revn. No. 216 of 1950 (B) the same view was taken. I must, therefore, hold that a serious irregularity was committed by the Magistrate in adopting the procedure of trial of a summons case.
5. The learned Government Advocate, however, urged that as the petitioner had pleaded guilty no prejudice was caused to him. But I find that in Emperor v. Chinappayan ILR 29 Mad 372 (C) it was held that though the accused had pleaded guilty the trial of a warrant case as a summons case must necessarily cause prejudice to the accused. In the present case no evidence was taken. If the offence had been tried as a warrant case the prosecution would be bound to lead evidence to establish a prima facie case before charge is framed.
It is difficult to say whether evidence would be forthcoming so as to establish a prima facie case against the petitioner. Consequently, by adopting the summons case procedure and examining the accused under Section 242, Criminal Procedure Code before any evidence was let in by the prosecution, prejudice might possibly have beencaused to the petitioner. I would, therefore, setaside the conviction and sentence, and direct are-trial of the petitioner.