VASU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in revision who was the first accused at the trial, was convicted of an offence under S.8(1)(b) of the Prohibition Act, 1950 and sentenced to undergo rigorous imprisonment for three months. In appeal, the District Magistrate confirmed the conviction and sentence. In revision before us, counsel for the petitioner has complained against the legality of the procedure adopted for the trial. The Magistrate took cognizance of the offence on a police report dated the 8th March, 1964, which in terms was a 'charge sheet', as it is called, being a report under S.173 of the Criminal Procedure Code and followed the procedure prescribed by S.251A in Chap.21 of the Code, for the trial of a case instituted on a police report. The complaint was that by virtue of S.251(b) of the Code, the Magistrate ought to have followed the procedure specified in the other provisions of Chap.21. This was based on S.56 of the Prohibition Act, which reads as follows:

(2.) Under S.56, upon receipt of the report of a police officer as described the Magistrate has no alternative but to follow the procedure specified for the trial of a case instituted on a complaint, the procedure specified in S.251A being inapplicable. S.61 of the Prohibition Act, as amended in the year 1960 and as was in force at the material time, lays down:

(3.) But the State Prosecutor has relied on In re. Pavadai Goundan ( AIR 1957 Mad. 292 ) in which it was held, that the police officer may investigate an offence under Chap.14 and make a report under S.173 to the Magistrate competent to try the case, and attract the procedure in S.251A of the Code, despite S.48 of the Madras Prohibition Act, 1937, which corresponds to S.56. It has to be noted, that at the time the decision was rendered S.53 of the Madras Act which now corresponds to S.61 of the Prohibition Act, 1950, had not been amended into its present form and read: