SARDAR KHAN Vs. STATE

JUDGEMENT

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

(2.) THE circumstances giving rise to the aforesaid two questional briefly stated, are these. On the report, of a certain Excise Officer one Sardarkhan was convicted under section 9 (a) and (b) of the Opium Act. THE Magistrate held the trial in the manner Said 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 251-A of the Code. It was contended that the report of the Exeise 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 down 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 reasoning of the Calcutta High Court in the case of Premchand Khetry v. THE State AIR 1958 Cal. 213., with which Sea J. felt inclined to agree may be briefly stated as under: