TEK CHAND Vs. STATE OF U P

JUDGEMENT

(1.) The facts giving rise to these revisions are identical and a common question of law is involved for determination. The revisions were therefore heard together and are being disposed of by a common order.

(2.) The facts which admit of no controversy are that two complaints were filed, one against Tek Chand and the other against Karam Chand (revisionists) by Sri. D.A. Nistance. Intelligence officer, Narcotics Control Bureau, New Delhi (opposite party no. 2) alleging that each was cultivating opiwn poppy and was in possession of the same in contravention of the provisions of Section 8 (b) & (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 punishable under Section 18 of the said Act. It is not disputed that opposite party no. 2 is a public servant and he, in the discharge of his official duty, made the complaints. The offence is triable by a court of session. The Magistrate took cognizance of the offence and summoned the revisionists. After their appearance, the Magistrate committed the cases to the ill court of session. The cases were numbered as Sessions Trial 83 and Sessions Trial 84 in the court of session. The trials were made over to II Additional Sessions Judge Dehradun for disposal. Both the revisionists moved applications in these cases before II Additional Sessions Judge, Dehradun, alleging that because the committing Magistrate had not resorted to or complied with the provisions of the proviso to Section 202 of the code of Criminal Procedure, the order committing the case to the court of session was bad in law. The learned Additional Sessions Judge has, by his impugned order dated the 15th of February, 1988 rejected the contention. The correctness and the propriety of this order has been assailed by means of these revisions.

(3.) Drawing our attention towards the proviso to Section 202 of the Code of Criminal Procedure, the learned counsel for the revisionists contended that it being a case triable by a court of session, it was incumbent on the complainant to examine all his witnesses and because this has not been complied with, the impugned order is illegal and liable to be set aside. The learned counsel for the opposite-parties, on the contrary, contended that it is not obligatory on the part of the Magistrate to resort to the enquiry or investigation contemplated by Section 202 of the Code of Criminal Procedure and; therefore, the said proviso is inapplicable to the facts of the instant case. Reliance is placed on a well known decision of the Supreme Court in Antulays Case and also on a case reported in Harish Dwarkadas Gandhi v. G.B. Yadav.