1. The appellant has been convicted by the Chief Presidency Magistrate of Calcutta on a charge under Section 46, Excise Act, (Bengal Act 5 of 1909). The case against him briefly is that he was in possession of ten seers of charas valued at about Rupees 1600 in contravention of the provisions of the aforesaid Act. The facts alleged by the prosecution are briefly these: On 22nd February 1939, three Customs Preventive Officers, H. Ghose, P.C. Ghose and Section Huq, on the receipt of certain information waited at a place in Chowringee Square. A taxi drew up near where they were standing and two Indians and a European got out from the taxi. Thereafter the accused got out of the taxi with a suit case he was promptly arrested by these Customs Officers and in the suit case were found ten seers of charas. The defence taken is that the appellant was a casual visitor to an hotel near by and that he was wrongly arrested while coming out from the hotel. In view of the decision at which we have arrived, it will not be necessary for us to discuss the evidence in this case. It has been pointed out to us on behalf of the appellant that the learned Chief Presidency Magistrate did not record the evidence in accordance with the provisions of Section 362, Criminal P.C. and that in these circumstances it would not be possible for this Court to uphold the conviction. A second point taken is that a statement made by a witness, Subodh Chandra Patra who was the taxi driver to Mr. Elimuddin, the Superintendent of Customs, has been wrongly admitted in evidence in contravention of the provisions of Section 162, Criminal P.C.
2. There is substance in the first point taken on behalf of the appellant; the directions given in Section 362, Criminal P.C. are perfectly clear. It lays down that when a Presidency Magistrate is going to pass an appealable sentence he shall ordinarily record the evidence in the form of a narrative. He may also at his discretion take down the evidence in the form of questions and answers. In this case the learned Magistrate has failed to follow the directions given by Section 362 of the Code so far as two witnesses are concerned. These are the witnesses P.C. Ghose and Section Huq. In recording their evidence in chief the learned Magistrate merely records the following words, 'corroborates P.W. 1.' It is impossible for us to form a correct opinion of what these witnesses said from this record. (What we require in this Court is not merely the opinion of the learned Magistrate regarding the evidence given by the witnesses but a correct record of the evidence given by the witnesses. It is for us to decide whether the evidence corroborates or contradicts the other evidence and we can only decide this properly if we have the evidence before us. We find it impossible to deal with this appeal satisfactorily without knowing what these witnesses have said and we are not prepared to act upon the opinion of the learned Magistrate that they said something which corroborated the evidence of witness No. 1. As regards the second point we are of opinion that it has not been made out. Mr. Elimuddin is not an Excise Officer but a Customs Officer. The Excise Act does not give him any powers of investigation. Section 74 of the Act invests certain Excise Officers with the powers conferred upon a police officer under the Criminal Procedure Code to make investigations. A statement made to Mr. Elimuddin therefore does not fall within the mischief of Section 162, Criminal P.C. inasmuch as it was not a statement made to a police officer making an investigation. As a matter of fact, in this case investigation had not been started when this statement was made and Mr. Elimuddin had nothing to do with the investigation. We are of opinion therefore that the statement made by the taxi driver to Mr. Elimuddin is admissible in evidence. In view of the decision arrived at regarding the first point, we consider that the order of conviction and sentence must be set aside and the case must be sent back for retrial according to law. The accused shall remain on the same bail.
3. I agree. It seems to me impossible to resist the appellant's demand for a retrial. If by the use of the word 'corroborated' the learned Magistrate means that the depositions of the witnesses were all word for word the same, the only conclusion would be that they have been so carefully tutored that no reliance can be placed on their evidence. If, as is probably the case, the learned Magistrate does not mean this, we are in the position that we do not know what the witnesses said.