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Mohammad Kazi and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.811
AppellantMohammad Kazi and ors.
RespondentEmperor
Cases ReferredDeo Sahai Lal v. Queen
Excerpt:
penal code (act xlv of 1860), sections 224, 225 - escape from custody--obstructing apprehension - opium, act (i of 1878), sections 9, 15--arrest by excise officer, of a person selling a mack substance alleging it to be opium, if legal. - .....in possession of opium contrary to the opium act, and certain persons were put forward by the excise officer as apparent purchasers of opium from the accused no. 1 mohammad kazi, and in pursuance of such apparent purchases, certain balls of black substance changed hands. thereupon the first accused mohammad kazi was arrested by the excise officer. on the way to the place where the sampan was moored, the excise officer and the others who were with him were attacked by a body of men who were carrying lathis; and that body of men included the accused other than mohammad kazi. the result was that the accused no. i was rescued by force.3. a case was then made against the first accused mohammad kazi under section 9 of the opium act, alleging that he was unlawfully in possession of opium......
Judgment:

Lancelot Sanderson, C.J.

1. In this case the first accused Mohammed Kazi was charged with an offence under Section 224 of the Indian Penal Code, that is to say, with intentionally offering resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or escaping from any custody in which he is lawfully detained for any such offence; and the other accused were charged with an offence under Section 22b, that is to say, with intentionally offering resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescuing any other person from any custody in which that person is lawfully detained for an offence. All of them were also charged under Section 147 of the Indian Penal Code, the common object alleged being to rescue Mohammad Kazi from lawful custody.

2. Now, the facts of the case may shortly be recapitulated as follows: The accused Mohammad Kazi was suspected of being in possession of opium contrary to the Opium Act, and certain persons were put forward by the Excise Officer as apparent purchasers of opium from the accused No. 1 Mohammad Kazi, and in pursuance of such apparent purchases, certain balls of black substance changed hands. Thereupon the first accused Mohammad Kazi was arrested by the Excise Officer. On the way to the place where the Sampan was moored, the Excise Officer and the others who were with him were attacked by a body of men who were carrying lathis; and that body of men included the accused other than Mohammad Kazi. The result was that the accused No. I was rescued by force.

3. A case was then made against the first accused Mohammad Kazi under Section 9 of the Opium Act, alleging that he was unlawfully in possession of opium. He was convicted. On revision by this Court, that conviction was set aside on the ground that the substances, which Mohammad Kazi purported to sell to those persons who were put forward by the Excise Officer, was not in fact opium; the black substance which was sold did contain a very small percentage of opium; but we came to the conclusion, that what he had sold and had been in possession of, was not in fact opium within the meaning of the Act; and consequently the conviction against Mohammad Kazi under Section 9 of the Act was set aside.

4. What he had really been doing, as far as I can understand the facts, was that he was attempting to pass off this black substance as opium, purporting to sell it to the persons who were put forward by the Excise Officer as the apparent purchasers.

5. Then the present charge came to be investigated. The charge against the first accused was under Section 224 and against the other accused under Section 225, and against all of them under Section 147.

6. A point was then taken that Mohammad Kazi not having committed any offence under Section 9 of the Opium Act was not in lawful custody at the time of his rescue.

7. Now, the Excise Officer was acting under Section 15 of the Opium Act. That section provides first of all that any officer of the said department 'may seize, in any open place or in transit, any opium or other thing which he has reason to believe to be liable to confiscation under Section 11 or any other law for the time being in force relating to opium' and 'detain and search any person whom he has reason to believe to be guilty of any offence against this or any other such law, and, if such person has opium in his possession, arrest him and any other persons in his company.' It was the latter portion of the section under which the Excise Officer acted, namely, if such person has opium in his possession, arrest him and any other persons in his company.' Mohammad Kazi had purported to sell what he alleged was opium, and consequenty the Excise Officer arrested him acting under Section 15 of the Opium Act If the substanse had in fact been opium, Mohammad Kazi would have been guilty of an offence under Section 9 of the Act; and there could be no doubt whatever about the legality of the Excise Officer's act in arresting him. How then can Mohammad Kazi, being himself responsible for his arrest by alleging that the substance which he was selling was opium, turn round and say that his arrest was illegal alleging that what he was selling was not opium although at the time he made the sale he passed it off as opium?-To give effect to such an argument would lead to a conclusion which is ridiculous. Consequently we are of opinion that the arrest was legal and that Mohammad Kazi was in lawful custody at the time of the rescue.

8. In support of this conclusion I may refer to the case of Deo Sahai Lal v. Queen-Empress 28 C. 253 : 5 C.E.N. 289 where Mr. Justice Pratt and Mr. Justice Brett, said: Having regard to the contest' (they are dealing with Section 224) we think that the words for any such offence' must mean for any offence with which be is charged or of which he has been convicted.' So that it would be an offence for a man to escape from custody after he had been lawfully arrested on a charge of having committed an offence, although he may not be convicted of such latter offence.''

9. For these reasons 1 am of opinion that the first accused was in lawful custody, he was lawfully detained and when he effected his escape he committed an offence under Section 224.

10. It follows from this that the other accused who rescued the first accused from the above-mentioned lawful custody were guilty of an offence under Section 225. The learned Judge in concluding his judgment said this: 'The evidence shows that Mohammad Kazi, after escaping from the hold of the two excise peons, joined in beating the excise men. The other appellants were members of an unlawful assembly with the common object of rescuing Mohammad Kazi from lawful custody and joined in inflicting injuries on members of the excise party in order to effect and to safeguard his escape. The convictions are, therefore, within the scope of Sections 224, 225 and 147 of the Indian Penal Code. The attack was of a dangerous nature and shows that the perpetrators have little regard for law and order. The sentences are not too severe.' 1 entirely agree with this summary of the learned Judge.

11. For these reasons I think that this Rule should be discharged.

Walmsley, J.

12. I agree.


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