SARBAT ALI Vs. THE STATE

JUDGEMENT

(1.) This Rule was obtained by the petitioner who is prosecuted under Sec. 9(a) of the Opium Act before a Presidency Magistrate in Calcutta.

(2.) The relevant facts are that the petitioner was arrested on 13.11.72 on the allegation that certain quantity of opium was seized from his possession. He was produced before the Additional Chief Presidency Magistrate, Calcutta on 14.11.72 in respect of a charge under Sec. 9 of the Opium Act. The learned Additional Chief Presidency Magistrate passed the following order on 11.7.73.

(3.) Another point of some importance has arisen in this Rule as to what would be the procedure to be followed by the Magistrate in trying the case if cognisance is taken on the materials on record. The relevant provision which requires consideration in this connection is Sec. 20 which is the Bengal Amendment of the Opium Act. It requires an officer of the Excise, Police or Custom Department to submit a report setting forth the name of the accused person and the nature of the offence with which he is charged before a Magistrate having jurisdiction to try the case. Upon receipt of such report the Magistrate shall enquire into such offence and try the person accused thereof in like manner as if such report in writing made by a Police Officer under Sec. 190(1)(b) of the Code Criminal Procedure of 1398. The Supreme Court has expressed itself on the procedure to be adopted by the Magistrate in such cases in a case reported in AIR 1965 SC 1185 (Provin Chandra Mody Vs. State of Andhra Pradesh) . The Supreme Court has clearly expressed its opinion that the position was in such cases that such reports, if they are regarded as made under Sec. 190(1)(b), must attract the provision of Sec. 251A of the Code, because if the fiction is given full effect they cannot be regarded as falling within 'complaints' under Sec. 190(1)(a) or within Sec. 190(1)(c) of the Criminal Procedure Code. Sec. 251A is applicable to the trial of the case.