STATE Vs. KALI

JUDGEMENT

(1.) This is a Government appeal against the acquittal of the respondent Kali of a charge under Section 9 (c), Opium Act, by a learned Magistrate of Nahan.

(2.) One maund and twenty-nine seers of opium was discovered from a hillock about four furlong a from the respondent's house on being pointed out by him. The prosecution case is that the discovery was preceded by a statement made by the respondent to the police that he along with others had concealed the The State vs. Kali (16.10.1950 - HPHC) Page 2 of 4 opium there. The defence was that the opium had not been concealed by the respondent but by others, and that the respondent had detected those others concealing the opium and informed the police about it.

(3.) The respondent produced no evidence in support of his version, but the learned Magistrate found himself precluded from finding him guilty by two rulings of the Allahabad and Lahore High Courts reported as Baldeo v. Emperor, A. I. R. (27) 1940 ALL. 263 : (41 or. L. J. 627 F. B.) and Hakamkhudayar v. Emperor, A. I. R, (27) 1940 Lah. 129 : (41 Or. L. J. 591 F. B.). There was a conflict of opinion amongst the various High Courts in regard to the admissibility of a statement made to the police which led to the discovery of the incriminating article, but, that conflict has been set at rest by the amendment of Sub-section (2) of Section 162, Criminal P. C., by the Code of Criminal Procedure (Second Amendment) Act (xv [15] of 1941). By this amendment nothing in Section 162 shall be deemed to affect the provisions of Section 27, Evidence Act. The effect of this amendment is that a statement falling under both the sections, i, e., 8, 162, Criminal P. C. and Section 27, Evidence Act, may be proved against the person making it subject to the limitations prescribed by the latter section, It appears that the Criminal Procedure Codes in possession of the Bench and the Bar at Nahan were old editions not containing the amendment, which is really unfortunate. The result is that the learned Magistrate was not precluded from considering the statement made by the respondent to the police.