BRIJLAL MALHOTRA Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Ganjam recommending the quashing of a proceeding under Section 9(a) of the Opium Act (Act 1 of 1878) pending against the petitioner in the Court of a First Class Magistrate at Berhampur.

(2.) ON 29 -4 -59 the Excise S. I. of Berhampur submitted a report under Section 20G of the Opium Act to the Sub Divisional Magistrate, Berhampur stating therein that the petitioner had committed an offence under Section 9(c) of the Act. The petitioner was described as a resident of Cawnpur, but it was mentioned that he was arrested at Berhampur on the 11th April, 1959. It was further stated that some bags containing opium capsules were sent by railway from Cawnpur to Berhampur by the petitioner addressed to himself; and that these were seized by the Excise Staff. Having stated these facts the report of the Excise Sub -Inspector further added that in the opinion of that officer the petitioner was guilty of 'illegal export of opium capsules'. Along with the said report seizure lists in form C -2 were enclosed giving particulars of the bags of opium capsules seized at Berhampur Goods Shed and Parcel Godown. The consignment was booked by the petitioner to himself.

(3.) THE learned Sessions Judge, in his order of reference pointed out that the Magistrate's view was wrong, that in the light of the procedure prescribed in Section 251A, Cri. P. C. it was not open to the Magistrate to examine witnesses before framing a charge and that on the basis of the prosecution report the only offence mentioned against the accused was the offence of 'unlawful export' of opium. He therefore observed that as this offence was committed at Cawnpur outside the territorial jurisdiction of the Magistrate at Berhampur, the entire proceeding should be quashed.