1. Rule No. 493 has been issued at the instance of two persons, Ali Mia and Ismail. Rule No. 494 has been obtained by five persons, Makhlas Rahaman, Oliar Rahaman, Shafarali, Mofizulla and Nizamali. These seven persons were tried by the Sadar Sub-divisional Magistrate of Chittagong. He convicted all these seven accused persons under Section 9 of the Opium Act read with Section 120B of the Penal Code, and he also convicted two of them viz., Ali Mia and Makhlas Rahaman under Clauses (c) and (e) of Section 9 of the Opium Act and the remaining five, viz., Ismail, Oliar Rahaman Shafarali, Mofizulla and Nizamali, under Clauses (c), (d) and (e) of that section. The Sessions Judge, on appeal, has upheld the convictions of Ali Mia and Makhlas Rahaman under Section 9 of the Opium Act read with Section 120B of the Penal Code, but set aside their convictions under the Opium Act, and he has upheld the convictions of the ether accused persons. He has, however, modified the sentences passed on all the petitioners.
2. The contention involved in the Rules is that the trial of the petitioners was void as cognizance of the offence under Section 120B of the Indian Penal Code, read with Section 9 of the Opium Act, was taken in contravention of the provisions of Section 196-A of the Code of Criminal Procedure.
3. The proceedings before the Court were started upon a report made by the Inspector in charge of Excise and Salt, Chittagong, and dated the 14th August 1925. In the column in which the 'Nature of Case' has to be set out, the following was what was stated:
Illicit import, transport and possession of opium under Section 9, Act 1 of 1878, read with Section 120B of the Indian Penal Code.
4. Warrants of arrest were prayed for against five of the accused, two of them being produced in Court. The report, it must be said, was somewhat ambiguous, as it is not clear whether a case of conspiracy only was intended to be started or a case relating to substantive offences under the Opium Act. The question, however, is immaterial, for, in point of fact, the warrants that were issued, on the 18th August 1925, upon the said report against the five persons who were not before the Court, specified only an offence under Section 9 of the Opium Act. From the numerous petitions, etc., that were filed in the course of the trial by all the seven accused persons also it is clear that the proceedings went on as being under Section 9 of the Opium Act, and not in relation to an offence under Section 120B of the Penal Code. Whether there were sufficient materials in the aforesaid report to justify cognizance of a substantive offence under Section 9 of the Opium Act being taken is a question which does not now arise.
5. Witnesses for the prosecution were examined on the 25th November 1925 and the 26th. November 1925; and on the last mentioned date the Excise Superintendent of Chittagong, when being examined as Witness No. 9 for the prosecution, produced an order of the Government of Bengal consenting to the initiation of proceedings under Section 120B of the Penal Code read with Section 9 of the Opium Act. This order bears date the 12th September 1925, and it was marked as Ex. (6) in the case. The charge under Section 120B, read with Section 9 of the Opium .Act, was framed against the accused persons on the 18th December 1925.
6. For these facts it is clear that the Magistrate did not take cognizance of the offence of conspiracy until after the order consenting to the initiation of the proceedings for that offence was passed by the Local Government, and as far as may be gathered from the record he took cognizance of that offence only when he framed the charges on the 18th December 1925. Under Section 196A, Clause (2) of the Criminal Procedure Code, it is only the existence of such an order that is necessary to enable a Court to assume jurisdiction.
7. There is no substance, therefore, in the contention urged on behalf of the petitioners, and the Rules must accordingly :be discharged. The petitioners should now surrender to their bail to serve out the unexpired portions of their sentences.