PREMCHAND KHETRY Vs. STATE

JUDGEMENT

(1.) This is a Rule, calling upon the Chief Presidency Magistrate to show cause why the proceedings pending against the petitioner before a Presidency Magistrate should not be quashed or why such other order or orders should not be made as to this Court may seem fit and proper. The petitioner, Premchand Khetry, is one of three persons who are on trial for certain oSences under the Opium Act and who were being tried according to the procedure laid down in Section 251A of the Cri. P. C. His contention is that Section 251A does not apply to the case and that the procedure laid down in Section 252 and subsequent sections of the Code ought to be followed.

(2.) The facts are simple. It is alleged that on receipt of some information, an Inspector of Excise, named Shri B. N. Ray, began to maintain a watch on premises No. 42, Ganesh Chan-dra Avenue, Calcutta, from 24-7-1956 and on that very day noticed a car, bearing the number MBI-1864, coming to the place at about 8-30 P. M. The petitioner was driving the car. On the next day, the same car came to the place twice during the day time and again at about 7-30 P. M. 'When it came in the evening, the petitioner was driving it as on the previous day and he had with him another of the accused persons, Raj Kumar, seated by his side. On arriving at the place, both the men went inside the house and ihey came out after about 15 minutes, followed by the third accused, Monohar Singh, who was carrying a wooden box. Five such boxes were brought out. one 'after another, three of which were placed inside the luggage carrier and two on the back seat. The petitioner then took his place at the driver's seat. Raj Kumar seated himself by his side, while Monohar Singh sat on the back seat by the side of the two wooden boxes. The car then started to go, but it had gone only a few yards when it was stopped. On examining the boxes, it was found that all of them bore the same address, viz., "M. Kumar and Bros. Tinsukia, self", and inside them were found 1 maund and 10 seers of opium. Subsequently, Room No. 4 of the house, which was in the occupation of the petitioner and Monohar Singh, was searched and further quantity of opium, weighing 13 seers and 13 chattaks, was recovered. A large assortment of other materials was also found such as packing cases, coverings of postal parcels addressed to M. Kumar and Bros, and false number plates of motor cars. The three men were immediately placed under arrest and they were produced before the Chief Presidency Magistrate on the following day. According to the Excise Officers, all the accused persons bore aliases, the petitioner having as many as ten.

(3.) The investigation was commenced by Shri B. N. Ray, but it appears that after sometime it was taken over by another officer, named Shri P. R. Das. In the course of the investigation, two other persons, named Ehawandas Kishindas and Dayaldas Kishenchand, were arrested, the former at Bombay and the latter at Delhi. On 10-12-1958, Shri P. R. Das submitted a challan against only the three persons originally arrested. All of them were charged under Section 120B of the Indian Penal Code, read with Sections 9(a) and 9(c) of the Opium Act. They were also charged under Section 9(a) of the Opium Act in respect of the possession of the 1 maund and 10 seers of opium. In addition, the petitioner and Monohar Singh were further charged under Section 9(c) in respect of the 13 seers and 13 chattaks of opium recovered from the room in their occupation. Simultaneously with the challan, an application was submitted for the learned Magistrate's sanction under Section 196A(2) of the Code for the prosecution of the accused persons on the conspiracy charge on the footing that the offences which it was the object of the conspiracy to commit were non-cognizable offences. As regards Ehawandas Kishindas and Dayaldas Kishenchand, it was prayed by a separate application that they might be discharged, as the evidence against them was not sufficient.