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The State Vs. Nilam Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 5 of 1952
Judge
Reported inAIR1952HP74
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 155(2), 190(1), 403, 403(1), 417, 439, 439(5) and 529; ;Opium Act, 1878 - Sections 9 and 14 to 21; ;Evidence Act, 1872 - Sections 57 and 81
AppellantThe State
RespondentNilam Das and anr.
Appellant Advocate Bakhshi Sita Ram, Govt. Adv.
Respondent Advocate Y.P. Gandhi, Adv. for; Atma Ram, Adv. and; Bhagat Singh
DispositionRevision allowed
Cases ReferredEmperor v. Bankatram Lachiram
Excerpt:
- chowdhry, j.c. 1. this is an application in revision by the state under sections 483 and 489, criminal p. c., against the judgment and order of the learned sessions judge of mahasu and sirmur, dated 16-7-1951, allowing the appeals of nilam das and atma bam and setting aside their convictions dated 19-3-1951 by the learned first class magistrate of jubbal under section 9 (a), opium act (i [1] of 1878) for illicit possession of 9 seers and 1 chatak of crude hill opium and the sentences of 3 months simple imprisonment and rs. 500 fine, or further simple imprisonment for one month in default of payment of fine, imposed on each of them.2. the prosecution case is that on receiving information of purchase of illicit opium certain officers of the opium department, including kamlanand, raided the.....
Judgment:

Chowdhry, J.C.

1. This is an application in revision by the State under Sections 483 and 489, Criminal P. C., against the judgment and order of the learned Sessions Judge of Mahasu and Sirmur, dated 16-7-1951, allowing the appeals of Nilam Das and Atma Bam and setting aside their convictions dated 19-3-1951 by the learned First Class Magistrate of Jubbal under Section 9 (a), Opium Act (I [1] of 1878) for illicit possession of 9 seers and 1 chatak of crude hill opium and the sentences of 3 months simple imprisonment and Rs. 500 fine, or further simple imprisonment for one month in default of payment of fine, imposed on each of them.

2. The prosecution case is that on receiving information of purchase of illicit opium certain officers of the Opium department, including Kamlanand, raided the house of Nilam Das in village Khashdhar during the day on 16-8-1950, that on Kamlanand threatening to search his house if he did not produce the opium Nilam Das produced the opium in question from a room occupied by Atma Ram as his guest in the latter's presence, saying that it belonged to Atma Ram, and that Atma Ram kept quiet. The officers of the opium department seized the opium and arrested Nilam Das and Atma Ram. The opium and the arrested persons were subsequently handed over to the police who investigated the case and challaned the accused.

3. In an elaborate judgment covering about fifty typed pages the learned Magistrate held that joint possession of the opium by the two accused had been fully established, and he convicted and sentenced them, as aforesaid. The learned Sessions Judge opined that it was not necessary for him to go into the merits of the case since in his view the Magistrate had no jurisdiction to try the case. The basis for this view appears from his judgment to be a two-fold one. Firstly, the search, seizure and arrest were illegal, whether under Section 14 or Section 19 of the said Act, because the officers in question of the opium department had not been authorised by the Government as required by the former section and there was no warrant for arrest or search as laid down by the latter section. Secondly, the police had no authority to investigate the case as the offence was a non-cognizable one and there was no order of a Magistrate contemplated by Section 155 (2), Criminal P. C. In the result, he passed the following order :

'The appeals of both the appellants, Nilam Das and Atma Ram, are allowed, and their convictions and sentences are set aside. Their bail bonds are cancelled and the sureties are discharged.'

Against this judgment and order of the learned Sessions Judge the present revision has, as already stated, been filed by the Government.

4. Two preliminary objections against the revision were taken on behalf of the respondents Nilam Das and Atma Ram. The first objection was under Section 439 (5), Criminal P. C. It was contended that an appeal against acquittal could have been filed by the State under Section 417, Criminal P. C., but as none had been brought, this Court should not entertain the present revision at the instance of the State. The learned Government Advocate replied that no appeal lay as the order of the Sessions Judge was not in terms or in substance an order of acquittal.

5. Now, there is no doubt that the order of the learned Sessions Judge did not purport in terms to be an order of acquittal. That is, however, immaterial for if on a proper interpretation of the judgment an order of acquittal was the correct order to pass the Sessions Judge will be deemed to have passed it. The question therefore is whether the Sessions Judge should be deemed in this case to have passed an order of acquittal even though he did not purport to do so, although the merits of the case were not gone into and the convictions and sentences were set aside on the sole ground of the Magistrate not having had the jurisdiction to try the case. Under Section 423 (1) (b) (i), Criminal P. C., he has reversed the finding and sentence. Ho has not ordered a retrial or a committal to Sessions. The only possibilities left therefore were that he acquitted or discharged the appellants. That he could not have acquitted the appellants would be clear by an examination of the provisions of Section 403 (1) of the Code. Under that section the plea of autrefois acquit could be available to the accused in respect of the offence in question only if they had been tried by a Court of competent jurisdiction. But the learned Sessions Judge hold (whether rightly or wrongly it is not necessary at this stage to say) that the Magistrate had no jurisdiction to try the case. Having held that he could not, even if he were to pass an order of acquittal in so many words, enable the appellants to take the plea of autrefois acquit in the teeth of the said provisions of Section 403 (1) of the Code. On the principle therefore that the learned Sessions Judge should not be deemed to have done what he could not have done under the law, it must be held that he purported to discharge and not to acquit the appellants.

6. The above view finds support from that expressed in Emperor v. Miajan, 53 Cal. 192. Holding that there was no compliance with the provisions of Section 360, Criminal P. C., and without going into the merits of the case, the SessionsJudge allowed the appeal, set aside the convictions and sentences, and left the question of retrial to the District Magistrate. That did not, of course, amount to an order of retrial. The High Court held that as according to the Sessions Judge the whole trial was vitiated by the irregularity, and as he did not discuss the evidence or record any finding on the merits, he could not be deemed to have passed an order of acquittal.

7. Again, in P. Bannerjee v. Bipin Behary Ghose, 30 Cal. W. N. 382, the Magistrate's order of acquittal on the finding that the cognizance of the case could not be taken for want of a valid sanction to prosecute was held not to amount to an acquittal in view of the provisions of Section 403, Criminal P. C. In the present case, want of jurisdiction in the trying Magistrate is grounded in the Sessions Judge's judgment on other reasons, but that makes no difference for application of the principle laid down in the reported case.

8. Another case of void proceedings for want of proper consent is to be found in Dr. Hori Ram Singh v. Emperor, A. I. R. 1939 F. C. 43, and it was held by their Lordships that an order directing acquittal was in the circumstance wrong.

9. Again, it was held in In re Arunachala Goundan, A. I. R. 1948 Mad. 492, that where once an irregular or improper conviction has been set aside as void and a fresh trial is not ordered it amounts to a discharge of the accused.

10. The learned counsel for the respondents cited the following rulings : Harbhagwandas v. Emperor, A. I. R. 1920 sind 75, Emperor v. Nga Aung, A. I. R. 1924 Rang. 98, Abdul Karim v. Emperor, A. I. R. 1929 pat. 640, Emperor v. Dayal Singh, A. I. R. 1937 Lah. 132 and Vinayak v. Shantaram, A. I. R. 1941 Bom. 410. They were, however, all cases of clear acquittal and therefore revisions were held to be barred under Section 439 (5) of the Code. In the present case, the Sessions Judge's order was not an order of acquittal and could not, for reasons already recorded, be interpreted as such. These rulings have therefore no application in this case.

11. Reliance was also placed by the learned counsel for the respondents on Emperor v. U San Win, A. I. R. 1932 Rang. 147, where an order of discharge passed by the Sessions Judge was held by the High Court to amount to an order of acquittal. The Sessions Judge's order was so interpreted because in the opinion of the High Court 'there was ample evidence to justify an order of acquittal.' In the present case, however, the merits of the case, justifying an acquittal or maintenance of conviction, have not been gone into by the Sessions Judge, and in the reported decision the question of want of jurisdiction did not arise.

12. The said preliminary objection has no force and I hold that the order of the Sessions Judge is not, and does not amount to, an order of acquittal, that the present revision, and not an appeal, was the only proper remedy against that order whichthe State could avail of, and that the revision is therefore not barred under Section 439 (5), Criminal P. C.

13. Another objection taken by the learned counsel for the respondents was that the revision should be dismissed as a belated one. The judgment of the Sessions Judge is dated 16-7-1951 and this revision was filed on 4-1-1932. Allowing for the 23 days taken in obtaining copies of judgments, the revision was filed after 149 days, or in about 5 months. It was held by this Court in Lajja Ram v. State, A. I. R. 1952 Him. p. & Bilaspur 32, that there is no limitation prescribed for the filing of a criminal revision, but that it was desirable that it be instituted without undue delay. It was further laid down that it will be the practice in this Court not to entertain criminal revisions generally if filed beyond 90 days from the order complained of. It is clear from the use of the word 'generally' that the 90 day-rule is not an inflexible one, and that even if a revision is filed after that period it will be entertained if in view of the facts and circumstances of the particular case the delay is not an undue one. To the same effect was the decision of this Court reported as Hari Singh v. Mt. Parbati, A. I. R. 1951 Him. p. 59. It was further held in that case that even if a revision is filed |after undue and unexplained delay, it might be entertained if on a consideration of the case on merits it appears that there has been a failure of justice. In the present case I entertain the revision despite the delay because there has been a failure of justice due to the Sessions Judge having set aside the convictions and sentences of the respondents without going into the merits of the case and, as I shall presently show, on a totally erroneous technical ground.

14. In order to appreciate the merits of the learned Sessions Judge's decision, it is necessary to set forth in brief the relevant provisions of the Opium Act. The Act is a short one containing 25 sections of which Sections 2, 6 and 22 stand repealed. Section 1 relates to the title, extent and commencement of the Act. Section 3 is the interpretation clause. Section 4 enumerates certain prohibitions except as permitted by the Act etc., including the one relating to possession of opium (alleged to have been contravened by the present respondents), and Section 7 relates to warehousing opium. Sections 5 and 8 give power to the State Government to make rules. Section 9 is the penal provision providing punishment for transgressions of the prohibitions contained in Section 4 and of the duty of warehousing legally imported opium mentioned in Section 7. Section 10 lays down a presumption arising in prosecutions under Section 9 and Sections 11, 12 and 13 provide for confiscation of incriminating articles and allied matters. Sections 14 to 21 relate to search, seizure and arrest and Sections 23 to 25 to recoveries of certain dues as arrears of land revenue. The provisions just mentioned relating to search, seizure and arrest, specially Sections 14 to 16, 19 and 20, must be examined in greater detail for itis on a correct interpretation of these provisions that the disposal of most, if not all, of the points decided by the learned Sessions Judge depends.

15. Prom the point of view of the persons making the search etc., these provisions may broadly be sub-divided under two heads: (1) Sections 14 and 15 relating to search etc. by any officer of the departments of Excise, Police, Customs, Salt, Opium or Revenue superior in, rank to a peon or a constable, and (2) Section 19 relating to search etc. by any person. Under the first head, although the persons making the search etc. must belong to one of the departments named, there are these distinctions between Sections 14 and 15 that under the former section the search etc. relates to opium in an enclosed place and it has to be carried out between sunrise and sunset by officers of the said departments above a certain rank authorised in that behalf by the State Government, while under Section 15 any officer of the said departments without any limitations of rank or special authority or time may (a) seize the contraband opium in an open place or in transit, and (b) detain and search any person guilty under the Act or such law, and, if such person has opium on his person, arrest him. The distinction between Sections 14 and 15 (a) is patent, relating as the former does to search etc. of opium in an enclosed place and the latter to seizure only in open place or in transit. The provisions of detention, search and arrest under Section 15 (b) are general, and, therefore, while they apply to opium in open place or in transit under Clause (a) of that section, they are excluded from application to opium in an enclosed place by reason of the said limitations contained in Section 14. Under the second head, i.e. under Section 19, there are no limitations whatsoever, the only condition precedent-being the existence of a warrant for arrest or search by one of the authorities named in the section. And, in view of the provisions of Sections 77, 96 and 101, Criminal P. C., the warrants may, in an emergency, be issued by any Court other than a Presidency Magistrate, to any person whether a police officer or not.

From the above analysis, as also from the contents of Section 20, it is further clear that the said provisions of Sections 14, 15 and 19 are mutually exclusive and not cumulative. In other words, each is self sufficient, so that in any given case the one or the other, but no two, of them need be applicable. But there is one thing common to all the said provisions by virtue of Section 16 and para. 2 of Section 19, and that is that the provisions of the Code, of Criminal Procedure apply to all searches under Sections 14 and 15 and to the execution of warrants under Section 19.

Lastly, Section 20 deals with the disposal of person arrested or thing seized. Its para. 1 consists of two independent portions: the first one dealing with arrest and seizure under Sections 14 and 15, and, because such seizure and arrest is by a member of any of the said departments, providing for theperson arrested and thing seized to be forwarded without delay to the officer in charge of the nearest police station, and the second portion dealing with the seizure and arrest under Section 19 and, because such seizure and arrest is at the instance of one of the officers mentioned therein and may be made by any person, providing further that the person arrested and thing seized be forwarded without delay to such an officer. Paragraph 2 provides for the disposal according to law of such person or thing by the officer concerned, i.e., the officer in charge of the nearest police station in the one case and the officer issuing the warrant in the other. As it is not laid down how the person and the thing are to be disposed of, it is clear that disposal According to law means disposal in accordance with the provisions of the Criminal Procedure Code.

16. The learned Sessions Judge held, and it was also urged before me by the learned counsel for the respondents, that the present offence being a special offence under a special Act, i.e., the Opium Act, the special procedure laid down under that Act should have been followed, in view of the provisions of Section 5 (2), Criminal P. C., and that as that was not done in this case the Magistrate had no jurisdiction to try the case. And in support of this argument the following rulings were relied upon: Lachmi Narain v. Emperor, A. I. R. 1919 pat. 452; Khilinda Ram v. Emperor, 3 Lah. 359; In re Kuppusami, A. I. R. 1923 Mad. 339; Candri Bawoo v. Emperor, A. I. R. 1925 Bom. 131; Lazar Fernando v. Amirtham Fernando, A. I. R. 1929 Mad. 604 and Emperor v. Mahomed Usman, A. I. R. 1933 sind 325. The question that arises for determination in this case, therefore, is : Whether there was any defect, procedural or otherwise, and, if so, what was its effect? It will be necessary to examine the alleged defects first, then the nature of those defects, and finally their effect, if any.

17. The alleged defects have already been referred to in para. 3 above, namely, (1) defects of search, seizure and arrest under Sections 14 and 19 of the Act, and (2) defect in police investigation under Section 155 (2), Criminal P. C. So far as the alleged defects under the Act are concerned, the contention has gone beyond necessary limits, and that is due to lack of proper appreciation of the facts of the case and the relevant provisions of the Act. The prosecution case is that certain officers of the Opium department, having reason to believe that opium liable to confiscation under the Act lay concealed in the house of Nilam Das, raided the house during day time on 16-8-1950, that one of the officers succeeded in pursuading Nilam Das to produce the incriminating opium from a room of the house, that those officers then seized the opium, arrested the accused and forwarded the persons arrested and the opium seized to the police officer concerned, and that the police officer investigated the case and challaned the accused. Manifestly, therefore, the case fell within the provisions of Section 14, read with the first portion of para. 1 of Section 20 of the Act. The only defects that call for consideration therefore are want of authority of the officers of the opium department who made the seizure and arrest, and transgression of Section 155 (2), Criminal Procedure Code, by the investigating police officer.

18. It would appear from the judgment of the learned Sessions Judge that it was conceded on behalf of the State in that Court that the authority contemplated by Section 14 did not exist. In this Court the learned Government Advocate argued that there was no such defect, and he referred to the Punjab Excise Powers and Appeal Orders and to certain notifications of this Government applying those Orders to Himachal Pradesh. The learned counsel for the respondents contended however that the Orders and notifications in question, not having been produced in the Court below, cannot be cited in, or looked into by, this Court in revision. According to the learned counsel the argument of the Government Advocate amounted to a new plea which had not only been not raised, but waived, before the Sessions Judge, and it has not been taken in the grounds of revision filed in this Court. These contentions have no force. The plea in question is no plea of the State but the plea of want of jurisdiction raised in defence, and the State is certainly entitled to show the untenability of the plea.

Furthermore, the State is entitled to do so by referring to the Punjab Excise Powers and Appeal Orders, passed by the Punjab Government under Section 4, Opium Act, and to any notifications issued by the Government of Himachal Pradesh applying those Orders to this State under para. 5 of the Himachal Pradesh (Application of Laws) Order, 1948. Neither the Orders nor the notifications in question need proof as the Court will take judicial notice of the former under Section 57, Evidence Act, and it will presume the genuineness of the latter under Section 81 of that Act as the same were published in the Gazette of India. A reference to the Punjab Excise Powers and Appeal Orders as applied to Himachal Pradesh by Notification No. 7 (2)-J-1-57/49, dated 10-2-1949, published at pages 65 and 66 of part II-A of the Gazette of India, dated 5-8-1949, as corrected by Notification No. EX. 88-82/51, dated 20-10-1951, published at p. 1025 of part III, Section 3 of the Gazette of India, dated 27-10-1951, however, shows that the only officers authorised in this State under Section 14, Opium Act, are all Excise Officers above the rank of Jamadar of peons and all Police officers above the rank of constables. Officers of the opium department have not been so authorised. The defence contention that Kamlanand and other officers of the opium department were not officers holding the requisite authority under Section 14 is therefore well-founded.

19. What were the acts done by these unauthorised officers of the opium department on16-8-1950? It is not clear whether they entered the house of Nilam Das. Nor is it clear if they effected any search because it is said that under threat of search Nilam Das himself produced the opium from a room of his house. What is clear is that they seized the opium, arrested the accused and subsequently forwarded the opium and the accused to the appropriate police officer. It makes no difference to my mind, however, whether the officers performed one or the other of the several acts enumerated in Section 14, for the nature of those acts is essentially the same. They are all acts usually performed by the police under the general provisions contained in part in, Criminal P. C., but performable by others also in respect of an offence punishable under the Opium Act. So far as the present case is concerned, those acts should have been of officers authorised by the State to perform them under Section 14, but that authority, as already shown, was missing. Now, before coming to the question of the effect of this defect, I would like to say that the defect was not a procedural one. In point of fact, from what has been said in paras 14 and 15 above it is clear that the Opium Act does not lay down any special procedure in the sense of laying down any special mode of proceedings relating to search, seizure, arrest etc., but, on the contrary, provides specifically for the application of the provisions of Criminal Procedure Code for carrying out those acts. All that the Act does is, on the one hand, to throw open the doing of those acts by officers of several allied departments and extend the power of issuing warrants under Section 19 to certain authorities other than the Courts and Magistrates referred to in the Code, and, on the other, to lay down certain precautionary provisions in the matter of searches etc. within an enclosed place.

I find support for this view in Narvirchand v. the State, A. i. R. 1952 M. B. 17, and I respectfully differ from a contrary view expressed in the aforesaid Lazar Fernandoz v. Amirtham Fernando, A. I. R. 1929 Mad. 604, ruling. The question is however of only academic interest, for, irrespective of whether the Opium Act does, or does not, lay down any special procedure, the question for determination is : What if any is the effect of the seizure and arrest having in the present case been made by officers of the opium department who had not been authorised in that behalf by the State Government under Section 14 of the Act But before I consider this question, it will be convenient to take up the other defect, pointed out above, which is said to have deprived the Magistrate of the jurisdiction to try the case, namely, defect in investigation under Section 155(2), Criminal P.C.

20. The present being an offence under a law other than the Indian Penal Code, and the maximum imprisonment provided for it by Section 9, Opium Act being two years, there is no doubt that under Schedule II, Criminal P. C. it was a non-cognizable offence. That being so, the police inthis case had no authority to investigate the case without the order of a Magistrate, in view of the provisions of Section 155 (2) of the Code. And as there is nothing to show that any such order was passed, it must be taken that the investigation in this case suffered from the defect. But this defect did not, in my opinion, affect the jurisdiction of the Magistrate to take cognizance of the case. I am of the view that since the substitution of the present Clause (b) of Sub-section (1) of Section 190 of the Code for the words 'upon a police report of such facts' by Section 45, Criminal P. C. (Amendment) Act of 1923, the scope of the said clause has been purposely widened. Before the amendment the words 'police report' were interpreted in a technical sense as they coincided with that expression as used in Sections 170 and 173 of the Code. See Abdulla v. Emperor, 40 Cal. 854 and King-Emperor v. Sada, 26 Bom. 150. The amended Clause (b) now speaks of 'report in writing of the facts of the offence made by any police officer.' The report may be made by 'any police officer,' and therefore even a police officer not entitled to investigate a non-cognizable case without a Magistrate's order, as required by Section 155 (2) of the Code. So long therefore as the report states facts which constitute the offence, a Magistrate will be acting properly in taking cognizance of the offence upon the report being made by any police officer.

That the present Clause (b) of Sub-section (1) of Section 190 is used in this non-technical sense and has replaced the previous technically interpreted expression finds support from In re Nagendra Nath Chakravarti, 51 Cal. 402 at pages 413 and 414. Since the said amendment it has consequently been held that the report referred to in Section 190 (1) (b) includes a report of the police in a non-cognizable case which the police had not been ordered to investigate. Public Proscutor v. Ratnavelu, A. I. R. 1926 Mad. 865, Prag Datt Tiwari v. Emperor, A. I. R. 1928 ALL. 765, and Emperor v. Walli Mahomed, A. I. R. 1928 Lah. 66. The learned counsel for the respondents cited Bahabal Shah v. Tarak Nath, 24 cal. 691; but that was a civil case for damages for illegal search on account of the police officer not being entitled to investigate a non-cognizable case without the order of a Magistrate in which the question of right interpretation of Section 190 (1) (b) did not arise. It has therefore no application and was wrongly relied, upon by the learned Sessions Judge. I hold that the Magistrate was perfectly justified in taking cognizance of the case, and the proceedings were not vitiated by reason of the police report being based on an investigation which had not been ordered by a Magistrate. It may be mentioned in this connection that even if the Magistrate were not empowered by law to take cognizance of the offence under Section 190 (1) (b), the defect was curable under Section 529 of the Code since it is not suggested that the Magistrate acted otherwise than in good faith.

21. Reverting now to the question of the otherdefect of seizure and arrest by officers of the opium department not authorised under Section 14 of the Act. It is not suggested that the Court which tried the respondents was not otherwise properly constituted. It had jurisdiction over the persons of the accused as also jurisdiction over the subject-matter of the offence. It has also been seen that it had jurisdiction to take cognizance of the case under Section 190 (1) (b) of the Code. Can it then be said that that Court was deprived of the jurisdiction which it otherwise had, and the whole trialwas vitiated, by reason of the seizure and arrest having been made by officers of the opium department not authorised in that behalf? There is nothing in the Opium Act itself justifying such an inference. So far as the Criminal Procedure Code is concerned, none of the incurable defects rendering proceedings void mentioned in Section 530, or even the curable ones mentioned in Section 529, exist in this case. The defect was a mere irregularity, and there is no suggestion that it has in fact occasioned a failure of justice. It is noteworthy that no objection on this score was taken in the trial Court. The Magistrate's decision was therefore not liable to be set aside on the ground of this irregularity in view of the provisions of Section 537 of the Code. I am supported in this view by the following authorities.

22. It was held in Crown v. Nabu, 11 Pun. Re. Cri. 1906, that it is no defence to a charge under the Opium Act that the discovery of the incriminating opium was made as a result of an illegal search. The illegality in that case was that in contravention of Section 14 the search was made at midnight. It was hold in Emperor v. Allahdad Khan, 35 ALL. 358, that irrespective of the search being legal or illegal, the thing to see is whether the finding as to the commission of the offence was correct. That was a case under the U. P. Excise Act, 1910, but the principle is equally applicable in the present case. State v. Badruddin, A. I. R. 1950 ALL. 436, was a case both under the Excise Act and the Opium Act. So far as the latter Act was concerned, the irregularities were that a Deputy Superintendent of Police had conducted the search without a warrant at 7 P. M. in contravention of the provisions of Section 14, and that no local witness was summoned to witness the search as required by Section 103 of the Code. It was held that these facts alone would not vitiate the conviction once it was proved that illicit opium had been found in possession of the accused. Emperor v. Kisan, A. I. R. 1951 Bom. 186, was a case under the Bombay Abkari Act, 1878. The accused were convicted although the search was not held in the presence of panches, as required by the law, and no panchnama was prepared.

Narvirchand v. State, A. I. R. 1952 Madh. B. 17, was a case under the Opium Act, where initiation of proceedings under Section 20 of the Act was defective in that the charge-sheet was put in bythe Superintendent Customs and Excise who had no power to do so. It was held that this was an irregularity curable under Section 537 of the Code and did not vitiate the trial.

23. A number of rulings were cited by the learned counsel for the respondents which I have mentioned above in para. 16. In the Lachmi Narain v. Emperor, A. I. R. 1919 pat. 452 case, which was a case under the Opium Act, the investigation was made by the Excise Sub-Inspector instead of the police, and it was held that the Magistrate was not properly in seisin of the case and therefore the proceedings were set aside. As was however held in a later decision of that High Court reported in the same volume as Lalu Pandit v. Emperor, A. I. R. 1919 pat. 488, that was not really the basis of the earlier decision. In any case, a contrary view was expressed in the later ruling, namely, that mere illegality in the matter of observance of a requirement of Section 14, Opium Act was no ground for setting aside a conviction under the Act. The Lahore ruling has no application as it was under the Gambling Act. The In re Kuppuswami, A. I. R. 1923 Mad. 339 ruling has also no application as it was under the Abkari Act which, unlike the Opium Act, lays down an elaborate procedure for investigation and trial of offences under that Act. It was therefore held that investigation by the police instead of Abkari officers had placed the accused under a considerable disability. It was therefore clearly a case which had in the view of their Lordships in fact occasioned a failure of justice which was not curable under Section 537 of the Code. That case is therefore clearly distinguishable.

The Bombay case was under the Bombay Prevention of Prostitution Act, 1923, and the conviction of a prostitute for the offence of soliciting was set aside on the ground that the arrest was illegal under Section 10 (1) of that Act and therefore the Magistrate had no jurisdiction to take cognizance of the case under Section 190 of the Code on police report submitted after such an illegal arrest. All the provisions of Section 190 were considered, and in considering Clause (b) of Sub-section (1) the narrow and technical interpretation mentioned above was employed although the decision was made in September 1924 full one year after the aforesaid amendment of that clause in 1923. It appears that their Lordships' attention was not drawn to the change brought about by the amendment. The ruling is against the trend of rulings after the amendment. For reasons recorded by me in para. 20 of this judgment I am unable, with all respect, to subscribe to the view expressed in this ruling.

The Lazar Fernando v. Amirtham Fernando, A. I. R. 1929 Mad. 604 ruling relates to a case under both the Abkari Act and the Opium Act. The case was started on a private complaint. The provisions of the Abkari Act were examined in detail, and it was held, following the said 1923 Madras case, that there was no right of privatecomplaint. Reference was also made to the aforesaid observations in the 1923 Madras case as to the accused having been placed under a disability. To this portion of the ruling, I have the same remarks to offer which I have already made in connection with the 1923 Madras case. The decision under review then goes on to the charge under the Opium Act and, without considering its provisions in extenso, as was done in the case of the Abkari Act, it was laid down that the provisions of the two Acts were similar or somewhat similar. In the result, the proceedings were quashed on the ground that the Magistrate had no jurisdiction to entertain the private complaint. Proceedings in the present case were, however, not initiated on a private complaint but on a police report, as required by Section 20 of the Act. This ruling has also, therefore, no application. Lastly, the Emperor v. Mahomed Usman, A. I. R. 1933 Sind 325 case has no bearing on the facts of this case as it was a case under the Abkari Act and relied on the aforesaid 1923 Madras case;

24. In the end it was contended by the learned counsel for the respondents that even though the decision of the learned Sessions Judge may have been wrong it was not perverse and therefore it should not be interfered with by this Court in exercise of its revisional jurisdiction. The matter was considered by me in Choudhary v. Devi Ram, A. I. R. 1951 Him. P. 25, and it was held by me that discretion in the exercise of revisional jurisdiction should be exercised in accordance with the following dictum of Jenkins C. J. in Emperor v. Bankatram Lachiram, 28 Bom. 533:

'If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion, and whenever it is urged that judicial decision has deprived us of the power that the Legislature has given us, I recall the words of an eminent English Judge. 'I desire to repeat', he said, 'what I have said before, that this controlling power of the Court is a discretionary power, and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances, which vary greatly. For myself I say emphatically that this discretion ought not to be crystallized as it would become in course of time by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion, which the Legislature has committed to them. This discretion, like all other judicial discretions, ought as far as practicable to be left untrammelled and free so as to he fairly exercised according to the exigencies of each case. These weighty words appear to me to breathe the spirit that should guide us in the exercise of our discretionary powers of revision.'

The circumstance which impels me to exercise my discretion in favour of interference in the present case is that without going into the merits of the case the learned Sessions Judge has set aside the convictions and sentences of the respondents in a somewhat sketchy judgment on a wholly illegal view of certain technical objections.

25. The revision is allowed, the judgment and order of the learned Sessions Judge, dated 16-7-1951, are set aside and he is directed to rehear the appeal on other permissible grounds than those on. which he passed the said order dated 16-7-1951 and his findings on which have been reversed in this revision.


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