STAT Vs. JUDHABIR CHETRI

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India, from the State of Assam. It arises out of a proceeding under Section 16, Assam Opium Prohibition Act, 1947, as amended. The proceeding was initiated by complaint of the Excise Inspector dated 16 -8 -1948. The learned Magistrate (first class at Tezpur) found that Judhabir Chetri, Opposite Party was a smuggler of opium by habit and also its seller and stockist and on 21 -11 -1949 ordered his externment from the Province of Assam for a period of 18 months.

(2.) AN appeal was preferred against this order on 7 -12 -49. The appeal was allowed and the order of the trial Magistrate was set aside by the learned Additional Sessions Judge L.A.D.

(3.) MR . Ghose, the learned counsel for the Opposite Party, has urged that the jurisdiction or the power of superintendence that this Court has got under Article 227 cannot be invoked in this case. His contention is that the proceeding in this case was initiated in August 1948 a long time before the Constitution came into force. Under Section 17 (3), A. P. O. Act the appellate order was to be final. Before the Constitution came into force, no party to the proceeding had the right to come to the High Court as under Section 224, Govt. of India Act this Court had no jurisdiction to interfere with the order or judgment of any inferior court, if the order was otherwise not subject to appeal or revision. The revisional jurisdiction of the Court under the Code of Criminal Procedure was excluded by the provisions contained in Section 17 (3). The Constitution came into force when the proceeding was at its appellate stage. The appeal was pending. Article 227 of the Constitution would not apply to a pending proceeding as that would involve retrospective application of the Article. He claims that the Article has got no retrospective effect.