SARDAR KHAN MULTAN KHAN Vs. STATE

JUDGEMENT

(1.) THIS matter has come up for our opinion on the following two points which have been specifically formulated by Sen J. :

(2.) THE circumstances, giving rise to the aforesaid two questions, briefly stated, are these. On the report of a certain Excise Officer one Sardarkhan was convicted under Section 9 (a) and 9 (b) of the Opium Act. The Magistrate held the trial in the manner laid down under Section 251 A, Criminal Procedure Code. The accused unsuccessfully challenged his conviction before the Additional Sessions Judge, mandsaur. This Court was, therefore, moved by a revision petition challenging the correctness of the conviction and it appears that it was during the course of arguments before Sen J. that it was urged that the entire trial was vitiated inasmuch as the trying Magistrate instead of following the procedure for trial laid down in Section 252, Criminal Procedure Code, followed the procedure laid down in Section 25i-A of the Code. It was contended that the report of the Excise Officer to the Magistrate not being such a 'police report' as is contemplated by Section 251-A, Criminal Procedure code, the case against the accused could not be said to have been instituted on a 'police report' to enable the trying Magistrate to follow the procedure for trial laid down in Section 251-A of the Code. The trial, it was urged, should have been in the manner as laid clown under Section 252 of the Code and the failure to so hold the trial has materially prejudiced the accused rendering his conviction liable to be set aside.

(3.) THE contrary view repelling the contention as raised by the petitioner expressed by a Single Judge of this Court in two cases, one of Abdul Rehman v. State, 1958 mp LJ 196 : (AIR 1958 Madh Pra 285) and the other of Laxminarayan v. State, (Cr. Revn. No. 220 of 1960) : (AIR 1961 Madh Pra 13) did not find favour with Sen j. He felt inclined to agree with the views supporting the petitioner's contention expressed in the matter by two Division Benches of Calcutta and Madras High courts, one reported in Premchand Khetry v. The State, AIR 1958 Cal 213 and the other reported in In re, Pavadai Goundan, AIR 1957 Mad 292 : 1957-1 Mad LJ 41. Accordingly this Bench was constituted to resolve the conflict that seems to have been arisen in this Court.