LAXMINARAYAN KHEMCHAND Vs. STATE

JUDGEMENT

(1.) THE applicant in revision has been convicted under Section 9 (a) of the Indian Opium Act, as amended by the Madhya Bharat Act 15 of 1955 and sentenced to suffer rigorous imprisonment for a year and a half and to pay a fine of Rs. 500/-with further rigorous imprisonment in default. This was for the possession without licence of about 4 seers of raw opium, by the applicant in his house and seized by a raiding party consisting of excise officers, police officers and two respectables (panchas) of the locality. The applicant set up a plea that the bag containing 4 seers, or to be more precise 3 seers and 14 chhataks opium, was openly taken into the house by a head constable, a member of the raiding party, and planted there. This was disbelieved both by the Magistrate and by the Sessions Court.

(2.) THE applicant has come here repealing the story of planting which is of course a plea of fact, and adding the following grounds of law (1) that the Madhya Bharat Act 15 of 1955 is ultra vires of Article 254 of the Constitution even though it had been reserved for consideration by the President and his assent obtained (2) secondly, the procedure adopted for trial was one under Section 251 A. Cr. P. C. , which was illegal as the one in Section 252; Cr. P. C. , should have been followed. The applicant has been prejudiced because he got only one opportunity to cross-examine and not two as he could have got had the proceedings been under Section 252 Cr. P. C. In this connection it is stated that the view taken by the Calcutta High Court in Premthand Khetri v. State, 1958 Cr LJ 622 : (AIR 1958 Cal 213), should be adopted by this Court also in preference to the view hitherto now (sic) that cases on reports by excise officers are really cases on Police report and not ones on complaint (3) thirdly, that the trial was irregular because the prosecution before the Magistrate was conducted by an Excise Officer who was no other than the officer who conducted the investigation and was himself a witness, and (4) fourthly, it is alleged that there are some irregularities such as (a) non-recording by the police of the information leading to the search (b) that the panchas did not enter the house (c) that the panchas were not from the immediate neighbourhood and (4) that one member of the raiding party, head constable Ramsingh, had not been examined.

(3.) ON the defence that the opium had been planted it is unnecessary to say anything as it relates to facts and has been considered by the trial Court and the appellate Court. It is significant that it was not suggested that one member of the raiding party managed to enter into the house openly with the canvas bag containing 4 seers or opium. It is also neither alleged nor suggested that immediately on the recovery, the applicant himself called out that a member of the raiding party walked in with the bag and planted it in the house. Any way the story of planting was disbelieved by both the lower courts and need not be re-agitated in this revision.