J.S. Ranawat, J.
1. This is a, revision petition by the accused Mangla and Uda against the judgment of the-Sessions Judge of Jaipur District dated the 5tb of December 1958 confirming on appeal the judgment of the Special Excise Magistrate, First Class, Jaipur, dated the 25th of July, 1958 by which both the accused Mangla and Uda were convicted under Section 54(a) and 54(d) and sentenced each to six month's rigorous imprisonment and a fine of Rs. 200/- or in default further rigorous imprisonment for a month and a half and to one month's rigorous imprisonment and a fine of Rs. 25/- or in default, one week's further rigorous imprisonment respectively.
2. The case of the prosecution was that both the accused were caught while distilling illicit wine in the vicinity of Jaipur City near-about Charan Mandir at Nahargarh. Pushkar Narayan, Excise Inspector, caught them on the 7th of September, 1957 and he seized a still in which wine was at that time being distilled and some quantity of fermented wash together with some liquor that had been distilled. Ramdas and two Chhotias P. W. 1 and P. W. 2 acted as witnesses of the seizure and the fact of the accused distilling wine at the time of their arrest. The samples of the wash and liquor were sent to the Chemical Analyst for chemical examination. The report of the Chemical Examiner was that the liquor contained ethyl alcohol.
3. The accused persons denied having committed an offence under the Excise Act and they produced three witnesses Bhonrilal, Bherun, and Chhoturam in their defence, The case was challaned by the Excise Inspector to the Court of the Magistrate First Class, Jaipur, on the 9th of September 1957 and the accused were tried by the learned Magistrate in accordance with the procedure laid down by Section 251-A of the Criminal Procedure Code.
After the trial was almost over, Section 67 of the Rajastban Excise Act was amended on the 14th of May 1958 and an explanation was added to it placing the report of an officer of the Excise Department at par with that of a Police Officer under Section 173 of the Criminal Procedure Code. The Special Excise Magistrate decided the case on the 25th of July, 1958. At the trial no objection was taken on behalf of the accused that the-procedure under Section 251-A was not applicable to the case and that Section 252 was applicable to it. After the conviction of both the accused persons, an appeal was filed to the court of the Sessions Judge, Jaipur and an objection was taken before him that the trial conducted by the Special Excise Magistrate in the instant case was bad in law inasmuch as the procedure laid down by Section 252 of the Criminal Procedure Code was not followed. The learned Sessions Judge rejected the objection on the ground that an explanation had been added to Section 67 of the Rajasthan Excise Act placing the reports of the Excise officers at par with those of police officers. Two other points which were raised On behalf of the accused persons were also discussed by the learned Judge and the appeal was dismissed. Both the accused have come to this Court in revision.
4. The case came up for hearing before Hon'ble the Chief Justice sitting singly and he has referred the case to Division Bench for the reason that in two decisions of this Court, namely State v. Bhagwana and Chhitar Singh v. State ILR (1958) 8 Raj 1206, it was held that the procedure provided by Section 251-A was not applicable to the trial of cases instituted on complaints by Excise officers and the learned Chief Justice felt that both the decisions followed the decision of a Madras case in Re Pavadai Goundan : AIR1957Mad292 and that the provision of Section 44(2) of the Rajasthan Act was a little different from the provision of Madras Prohibition Act and the decisions in the two cases referred to above required reconsideration.
It was also observed in the order of reference that amendment of Section 67 raised a further question for determination, as the case was challaned on the 9th of September 1957 and the amendment came into force on the 14th of May 1958 and the case was disposed of by the first court after the coming into force of the amendment.
5. The first case that has been referred to in the order of reference is . That case was decided by one of us sitting singly. It was held that procedure laid down by Section 252 of the Criminal Procedure Code was applicable to the trial of cases instituted on complaints or reports of Excise Officers. In that case the accused was convicted on his own statement without holding an inquiry and without framing a charge.
The conviction was set aside and the case Was remanded for trial in accordance with law. The question did not come up for consideration as to the effect of adopting the procedure laid down by Section 251-A in a case of that nature and the conviction was set aside on the ground that] the procedure followed by the Magistrate was: unjust inasmuch as no charge was framed and no inquiry was held in accordance with law and the conviction was based on the statement of the accused. The decision in Bhagwana's case I is thus distinguishable.
6. The next case is ILR (1958) 8 Raj 1206. In that case as well it was held that procedure laid down by Section 252 of the Criminal Procedure Code was applicable to the trial of cases instituted on the report of an Excise Officer and it was assumed that in cases where a different procedure was followed than the one prescribed by the law, the trial was vitiated and the conviction was, therefore, set aside and the case was remanded.
The learned Judge did not discuss whether or not if instead of following the procedure under Section 252 the procedure under Section 251-A was-followed, the trial was vitiated and also if it necessarily implied injustice or prejudice to the accused. The decision in AIR 1957 Mad 293 has also been referred to in Chhitaisingh's case ILR (1958) 8 Raj 1206, but we do not think i' is necessary to discuss that decision here as the point at issue came up for consideration in a Division Bench case of this Court, namely Ghisia v. State . The question was examined at length by the learned Judges and it was held:
(1) That procedure under Section 252 Cri. P.C. was applicable to the trial of cases of complaints lodged by Excise officers.
(2) In such cases if the procedure laid down by Section 251-A of the Criminal Procedure Code is followed, the trial is vitiated for the reasons that:
(i) the accused is entitled to a right of cross-examination of the prosecution witnesses at three successive stages, which is not available to the accused in cases that are tried in accordance with the procedure under Section 251-A.
(ii) the opportunity of being discharged under the procedure under Section 252 Cri. P.C. is more ample than the one under Section 251-A.
(iii) in cases tried under Section 252 Cri. P.C. the complaint is liable to be dismissed under Section 289 Cri. P.C. in the event of the complainant absenting himself, which is not the case in trials under Section 251-A. The learned Judges in view off the aforesaid reasons came to the conclusion that the trial of a case instituted on a complaint of an Excise Officer would be vitiated in the event of the case being tried in accordance with the procedure under Section 251-A.
7. Mr. Kansingh for the State has urged that the procedure laid down by Section 251-A is applicable to the cases instituted on police challan and generally such cases are of more serious offences and if no injustice or prejudice to the accused can result in the trial of those cases in accordance with that procedure, it should not be assumed that if cases instituted on complaints are tried in accordance with that procedure, the accused would necessarily suffer prejudice or injustice.
As regards the point that right to cross-examine prosecution witnesses is made available to the accused at three successive stages in cases tried as per procedure under Section 252 Cri. P.C. whereas the accused is afforded one opportunity for cross-examining prosecution witnesses in cases tried under Section 251-A, the learned counsel argued that this by itself should not be regarded sufficient to necessarily result in injustice or prejudice to the accused for the reason that in either case the accused gets ample opportunity to cross-examine the prosecution witnesses.
Whether it is in three instalments or one should not make any difference, Similarly it was argued that opportunity of being discharged before the framing of the charge should not in any way be regarded as vitiating the trial which begins only after the framing of the charge. In the same way it was urged that the opportunity of a case being dismissed on default of the complainant is also not a circumstance which might render the trial illegal.
It was argued in this connection that an offence under Section 54 of the Rajasthan Excise Act is a cognizable offence and the provision of Section 259 Cri. P.C. is not applicable to it and no distinction can, therefore, be drawn in the two procedures for this reason. The arguments of Mr. Kansingh deserve consideration; but we do not think it necessary to refer the case to a Full Bench for the reason that this case can be disposed of without considering the points that have been raised by Mr. Kansingh.
8. It may be noted that by explanation, that was added to Section 67 of the Rajasthan Excise Act, it is provided that the report of an Excise officer under Section 67(2) shall be treated for all purposes of trial to be a report made by a police .officer within the meaning of Clause (b) of Sub-section (1) of Section 190 of the Criminal Procedure Code of 1898. The cases of reports of Excise Officers are thus placed at par with the cases instituted on police challans.
The amendment came into force on 14th May 1958. The defence evidence in the Instant case was closed before the amendment came into force, but the case was decided after the said amendment was introduced in Rajasthan Excise Act. In Ghisia's case ILR (1959) 9 Raj 909: (AIR 1959 Raj 266) the effect of the amendment did not come up for consideration. In case it is now held following the decision in Ghisia's case ILR (1959) 9 Raj 909 : (AIR 1959 Raj 266) that the trial was vitiated on account of the fact that the procedure under Section 252 Cr L P.C. was not followed and in its place, the procedure laid down by Section 251-A Cri. P.C. was gone into and the trial is set aside and a de novo trial is ordered, the case would now be sent back and be tried again in accordance with the procedure laid down by Section 251-A and not in accordance with the procedure laid down by Section 252 Cri. P.C. for as the law now stands, a case of a report by the Excise Officer has to be tried as a case instituted on a police challan.
Thus if after quashing the trial, the same procedure and the same trial has to be repeated, there is no sense in staging a new trial which would be just Similar to the one that has already taken place. Having regard to the amendment] of Section 67, we think no useful purpose would be served by setting aside the conviction of the accused for a retrial shall have to be made in accordance with the same procedure as was adopted at the trial already held.
It may also be pointed out here that it is discretionary for this Court to exercise its revisional jurisdiction and under the circumstances of this case, when substantial justice has been done, we think we should not interfere with the judgment of the lower court on a highly technical point not resulting in prejudice or injustice to the accused, in exercise of our revisional powers.
9. The learned counsel for the petitioners has also urged that the report of the public Analyst was not admissible into evidence and that the convictions were also bad for this reason. It may be noted in this connection that even if the report of the Public Analyst is ignored, the convictions of the petitioners cannot be regarded ill founded for the simple reason that still and other implements of distillation were recovered from their possession and offences under Section 54(a) and (d) would, therefore, be established against them even without the chemical examination of the liquor and the wash that were also recovered in the same transaction. It may also be pointed out that the trial court did in fact examine P.N. Bhargaya as a court witness under Section 540 of the Criminal Procedure Code and the objection taken by the learned counsel is, therefore, without any basis.
10. The revision fails and is dismissed. The accused were let off on bail. They shall surrender to their bails and be sent to jail to undergo the remaining portions of their sentences. The District Magistrate, Jaipur may be directed to issue warrants for their arrest.