RAMESHWAR GIR Vs. STATE

JUDGEMENT

(1.) This criminal reference arises out of a case started on a complaint filed by the Assistant Opium Officer Bareilly Under Sec. 19 of the Opium Act.

(2.) After the case had been heard by a Magistrate on several dates, October 12, 1964 was fixed for further hearing. On that date the Assistant Opium Officer was not present in court and an application purporting to have been signed by him was presented to the court by the Opium Inspector Bareilly. It was stated in that application that the Assistant Opium Officer had been transferred from Bareilly and was posted at Chittaurgarh and it was, therefore, not possible for him to attend the Court on every hearing. It was also stated that the statement of the Assistant Opium Officer had already been recorded and the prayer in the application was that the personal attendance of the Assistant Opium Officer be dispensed with. The accused too made an application on that date praying that the complaint be dismissed as the complainant was absent. The learned Magistrate ordered the application presented by the Inspector Opium to be put up on the next date for orders and directed the prosecution to produce its evidence on that date, observing that the statement of the Assistant Opium Officer was no longer required to be recorded. The next date fixed in the case was 28 -10 -1964. Meanwhile the accused filed a revision application in the court of session and the Additional Sessions Judge III Bareilly has, after hearing the parties, made this reference recommending that the order of the Magistrate dated October 12, 1964 be set aside.

(3.) The ground on which the recommendation of the learned Additional Sessions Judge is based is that the complainant having been absent on October 12, 1964 and no reason for dispensing with his attendance on that date having been given by the Magistrate the accused ought to have been acquitted as required by Sec. 247 Code of Criminal Procedure.