STATE Vs. NILAM DAS

JUDGEMENT

(1.) This is an application in revision by the State under Sections 483 and 489, Criminal P. C., against the judgment and order of the learned Sessions Judge of Mahasu and Sirmur, dated 16-7-1951, allowing the appeals of Nilam Das and Atma Bam and setting aside their convictions dated 19-3-1951 by the learned First Class Magistrate of Jubbal under Section 9 (a), Opium Act (I [1] of 1878) for illicit possession of 9 seers and 1 chatak of crude hill opium and the sentences of 3 months simple imprisonment and Rs. 500 fine, or further simple imprisonment for one month in default of payment of fine, imposed on each of them.

(2.) The prosecution case is that on receiving information of purchase of illicit opium certain officers of the Opium department, including Kamlanand, raided the house of Nilam Das in village Khashdhar during the day on 16-8-1950, that on Kamlanand threatening to search his house if he did not produce the opium Nilam Das produced the opium in question from a room occupied by Atma Ram as his guest in the latter's presence, saying that it belonged to Atma Ram, and that Atma Ram kept quiet. The officers of the opium department seized the opium and arrested Nilam Das and Atma Ram. The opium and the arrested persons were subsequently handed over to the police who investigated the case and challaned the accused.

(3.) In an elaborate judgment covering about fifty typed pages the learned Magistrate held that joint possession of the opium by the two accused had been fully established, and he convicted and sentenced them, as aforesaid. The learned Sessions Judge opined that it was not necessary for him to go into the merits of the case since in his view the Magistrate had no jurisdiction to try the case. The basis for this view appears from his judgment to be a two-fold one. Firstly, the search, seizure and arrest were illegal, whether under Section 14 or Section 19 of the said Act, because the officers in question of the opium department had not been authorised by the Government as required by the former section and there was no warrant for arrest or search as laid down by the latter section. Secondly, the police had no authority to investigate the case as the offence was a non-cognizable one and there was no order of a Magistrate contemplated by Section 155 (2), Criminal P. C. In the result, he passed the following order : "The appeals of both the appellants, Nilam Das and Atma Ram, are allowed, and their convictions and sentences are set aside. Their bail bonds are cancelled and the sureties are discharged." The State vs. Nilam Das and Anr. (09.06.1952 - HPHC) Page 2 of 12 Against this judgment and order of the learned Sessions Judge the present revision has, as already stated, been filed by the Government.