ABDUL RAHMAN Vs. EMPEROR

JUDGEMENT

(1.) In these Rules we are concerned with the trial of a number of persons who were tried before Mr. P.C. Ghose, Magistrate of the first class, at Alipore. In all forty six persons were tried before that Magistrate upon a charge under Section 120-13, I.P. C, read with Section 9, Opium Act, (Act 1 of 1878), Secs.13, 14-A and 19, Dangerous Drugs Act, (Act 2 of 1930), and Section 19(a) and (c), Arms. Act, (Act 2 of 1878.) The charge was that they were parties to a criminal conspiracy to export, import possess and sell opium, (that part had reference to Sec. 9, Opium Act), import into British India and export from British India and tranship dangerous drugs, i.e. opium and cocaine ( Section 13, Dangerous Drugs Act) import and export interprovincially, transfer possess and sell manufactured goods, i.e. cocaine (that part had reference to Section 14(a), Dangerous Drugs Act), to hold and control a trade in dangerous drugs, i.e. opium and cocaine, obtained outside British India and supplied to persons outside British India ( Section 19, Dangerous Drugs Act), and to import and sell firearms. ( Secs.19 (a) and (c) of the Arms Act). We are not concerned with any question relating to the Arms Act as that part of the charge was not proceeded with in course of the trial.

(2.) On the main part of the charge thirty seven out of the forty six accused were convicted by the learned Magistrate as appears from the very elaborate and careful judgment which he delivered on 24 April 1933. The thirty seven convicted persons appealed against their conviction and sentences and the appeal was heard by Mr. B.H. Parker, Additional Sessions Judge at Alipore. As a result of the appeal thirty of the appellants had their conviction and sentences affirmed, and seven of the appellants were acquitted. Of the thirty convicted persons two were content apparently with the position which then was. The other twenty eight convicted persons came before this Court and were successful in obtaining Rules directed against their conviction and sentences. The Rules were issued in September, 1933 and between that time and the time the matter came before us a fortnight ago, two of the convicted persons named Joy Bhagwan and Golam Jalani had died. We therefore have to consider the cases of the remaining twenty six convicted persons. All these twenty six persons were represented before us by learned Advocates who put forward a number of points of law, some of which concerned the cases of all the twenty six persons and the others concerned only a certain number of them. The matter was argued before us for a number of days, and undoubtedly all that could possibly have been urged on behalf of these twenty six persons was fully and forcibly put before the Court. We have therefore to consider whether the arguments put before us were sufficient to lead us to the conclusion that any one of these twenty six persons is entitled at the hands of this Court to have his conviction set aside or the sentence imposed upon him reduced or varied or, on the other hand, whether inspite of the forcible and cogent arguments put forward, we ought to come to the conclusion that on the whole the judgment of the learned Additional Sessions Judge should stand.

(3.) The points put forward and elaborated before us may be classified under six heads (1) that by reason of non-compliance with the requirements of Section 196-A, Criminal P.C., the whole of the proceedings before the learned Magistrate who tried the case were invalid; in other words, the trial itself was unlawful by reason of the provisions of that section; (2) that the judgment given by the learned Additional Sessions Judge was not according to law, and that, therefore apart altogether from the illegality of the original trial there ought, at least to be a re-hearing of the case on appeal; (3) that the charge laid against all the accused persons was bad in law and wholly unsustainable by reason of the fact that the allegation made against all the accused was that they were parties to a criminal conspiracy which began in the year 1920 and continued until the mon March, 1932, and the charge had included within its scope an allegation of contravention of certain sections of the Dangerous Drugs Act of 1930 which only came into operation on 1 February 1931; (4) that under the provisions of the Opium Act, 1878 even as amended in the year 1914, the maximum sentence provided for is one year's rigorous imprisonment, and that as the Dangerous Drugs Act did not come into operation until the year 1931, it was not competent to the Court to impose the higher sentence of two years rigorous imprisonment which was the sentence imposed on a large number of convicted persona, nor was it competent to the appellate Court to apply the provisions of Section 18, Dangerous Drugs Act of 1930 and so to require the giving of security as provided for in that section which was in fact done in the case of a considerable number of convicted persons by the learned Additional Sessions Judge of Alipore; (5) that by reason of the fact that a certain number of the accused persons had on previous occasions been convicted of various offences in connection with the illegal trafficking in opium and raw cocaine, those particular convicted persons were entitled to pray in aid the provisions of Section 403, Criminal P.C, as a protection against these subsequent proceedings; seeing that they were basedon a charge of conspiracy contravening the provisions of the Opium Act 1778 and the Dangerous Drugs Act, 1930: and (6) that as regards certain of the accused it was manifest on the face of the judgment of the appellate Court that the evidence adduced against them was not sufficient in law to warrant the conviction, and in connection with this point Mr. N.K. Basu in particular on behalf of Abdul Bahaman, who was a petitioner in Rule 951 of 1933, took the objection that at the trial two sets of accounts had been taken into consideration, namely those of a man named Fazladdin and those of a man named Amiruddin, though these accounts had not been properly proved and were therefore inadmissible in evidence on behalf of the prosecution.