ASH IQ MIY AN AND ORS. STA TE OF MAI>llY A PRADESH May 1. 1968 [V. RAMASWAMI AND C. A. VAil>IALINGAM, JJ.j Opiton Act (1 of 1878), a.\· applicabl:: ro 1\fadhya Pradesh-Seizure and Report by l'olicc Ofjic:er-Tria! lt1'der Cr. P. C. 11·httl1er s. 251A or s. 252 c:r. P.C:. applicable.
On receiving information, Lhat opium \\'as being smuggled and secretly kept in the house of the appellants. the Sllb-Inspcclor of Police \\.i~ a police party raided their house. and recovered Jar~e quantity of opium from the courtyard of the house.
The Sub-Inspector of Police made the report and the trial followed. The appellanl<' pica that they \1.:cre living separately and that one A had thrown the bundle, \Vas re- jected by the
court~ beJoy,·. and they \\'Cre convicted under s. 1208 I.P.C. and s. 9(a) of the Opium Act. Jn the appeal 10 this Court. the appellants contended that the trial. which was held. under s. 251A of the Code of Criminal Procedure. \\'JS vitiated, as it should have hcen properly held only umkr s. 252 Cr. P.C.
HELD : There \vas no illegality in the trial. In this case the investigation \\'3S done hy a police otlicer. the seizure of the anicles and the report to the Magistrate. was made by the Police Officer.
It \\'as on this repon of the police officer that the f\fagistrate acted further. and the- trial also fol10V1·cd. In respect of a trial conduct~ JI c ed by a Magistrat<.- on a report made br a police officer. under the Opium Act, as applicable 10 the State of Madhya Pradesh. for an offence under that Act. s. 251A Cr. P.C. is applicahlc. 1192 F-HJ
Anial'lhah v. Stafr of Madhya Prad::slt, unreported decision. in Cr. A. No. 201/63. dt. 11-12-64. followed. CRIMISAL APPELLATE JURISDICTION: Criminal Appeal No. 128 of I 966. Appeal by special leave from the judgment and order dated
December 23, I 965 of the Madhya Pradesh High Court (Indore Bench) in Criminal Revision 1'o. 13 I of 1964. C. L. Sareen and R. L. Kohli, for the appellanls. l. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Vaidialingam. J. This is an appeal. hy special leave, in which the appellants challenge the propriety and correciness. of 1he order of the Madhya Pradesh High Court confinning 1heir con- viction, under s. ! 20B, TPC. and s. 9 (a). of the Opium Act, 1878 (Act I of 1878) (hereinafter calic<l the Act).
Appcllanis 2 .and 3 are the sons of the first appellant, and the 4th appellant. since deceased, was his nephew. c ASH!Q MIYAN v. M.P. STATE (Vaidialingam, J.) '189 On receiving information, that opium was being smuggled and secretly kept, in the house of the appellants, the Sub Inspector of Police, Station Malharganj, Indore, with a police party, raided their house, on September 19, 1960, and recovered a fairly large quantity of opium, of about 2 maunds, 14 seers and 14 chhatacks. The appellants were arrested, and charge-sheeted,
for having committed offences, under s. 120B, IPC., ands. 9(a), of the Act. They pleaded not guilty. Their defence was that each of them was living separately, and they were not also in the house, when the opium was stated to have been recovered.
The deceased, 4th appellant, raised a plea that one Altaf had come, in the morn- ing of September 19, 1960, at about 9 a.m., and told him that the police were after him, and that he wanted to throw a bundle, which was, in his possession, in the house of the appellants. Accordingly, Altaf threw a bundle, in the court-yard of the house of the appellants .
The Additional City Magistrate, Indore, accepted the case of the prosecution, and rejected the plea of the appellants. The trial Magistrate found that the opium was recovered, from the posses- sion of the appellants, who had no permit or licence, for its possession or transportation, and he also found that the appellants, along with others, had conspired to possess the said opium. On
these findings. each of the appellants, was convicted, under ss. 120B, IPC .. and s. 9 (a), of the Act, and sentenced to undergo two years' rigorous imprisoument, in respect of each of the offences, the sentences, to run concurrently.
The appellants challenged their conviction and sentence, before the First Additional Sessions Judge, Indore, in Criminal Appeal No. 118 of 1963. The learned Sessions Judge, agreeing
with the conclusions, arrived at by the trial Court, dismissed the appeal. The appellants, again, moved the High Court of Madhya Pradesh, in Criminal Revision No. 131 of 1964, to set aside their conviction; but the High Court also, by its order, dated Decem- ber 23, 1965, which is under attack, dismissed the revision. On behalf of the ·appellants, Mr. C. L. Sarin, learned counsel raised three contentions : ( 1) that there is no evidence of any conspiracy, to attracts. 120B, IPC; (2) neither the High Court, nor the two Subordinate Conrts, have considered the vital ques- tion, viz., whether the evidence establishes that the four appel- lants were in conscious possession of the opium, recovered from the house; and (3) the trial, which was held, under s. 251A, of the Code of Criminal Procedure, was vitiated, as it should have been properly held, only under s. 252, Cr.P.C.
So far as the first two contentions are concerned, in our opi- nion, it is really an attack, on the concurrent findings, recorded [ 1969] I S.C.R. by the Magistrate and, on appeal, by the Sessions Judae and which have been accepted, 'by the High Court, in revisio;. ' The Magistrate, as well as the learned Sessions Judge, have posed one of the questions for consideration, as to whether the appeiiant> can be considered to have been in c0nscious possession of the ~pmm, recovered from tbe house.
It is, in considering this ques- tion, that the plea of the appellants, that each of them was living separately in the house and that they were not present, at the time of the recovery, and that it was possible, for some outsider, to have thrown '!he opium recovered, into the court-yard of the house, have all been considered, in detail, and findings recorded, against the appellants.
The chance of any outsider, having thrown this article in the court-yard of the appellants' house, has been eliminated. The court-yard has been found to be a place where various domestic articles were kept, and has
also been found to be a place, in frequent use, by the appellants. Their presence, at the time of the recovery, has also been held to be established. In view of all these, and other circumstances,
to which it is unnecessary for us to refer, the finding has been recorded that the opium, found in the court-yard of the house of the appellants, was in their conscious possession and that Uie appellants, along with others, had also conspired together, to ob- tain, deal in, and possess opium.
The further finding is that tl!e presence of such a large quantity of opium could not ·have been possible, without each of them, taking the other, into confidence. These findings have been accepted, by •the High Court, and we are satisfied that there is no legal error, or infirmity, committed by any of the Courts, in arriving at that conclusion.
Therefore. the two contentions, noted above, will have to be ;-ejected. That leaves us, for consideration, the third contention, noted above, that the trial, in this case ought to have been held, under s. 252, Cr.P.C., and it is vitiated, as it has been
held, under s. 251A. Mr. Sarin. learned counsel for the appellants, urged that the officers, who are to investigate offences, and grant bail. to persons arrested under the Opium Act. as well as the proce- dure, for trial, in respect of offences, under the Act, and other incidental matters, connected therewith, have been laid down in sections 20 to 20-I, introduced in the
Act, by the Opium (Madhya Pradesh) Amendment Act, (M.P. Act XV of 1955). Counsel urged that the officer, empowered to inve~gate offences under s. 20 be he an officer of the Departinent of Excise. or a police officer. ~ust be considered to be an excise officer; and though the report, made by such an officer,
is treated, under s. 20G, of the Act, a' applied to Madhya Pradesh, as a report. made by a police officer, under s. 190(1 )(b), Cr.P.C .. it cannot be held to be a police report. within the meaning of s. 251A, ancl hence. the trial should have been held. in this case. not under s. 251-A, but under s. 252, Cr.P.C.
Counsel referred us to the c 'C ASHIQ MIYAN v. M.P. STATE (Vaidialingam, J.) decision, of the Madhya Pradesh High Court in Sardar Khan Multan Khan v. State('), in this connection.
Counsel further stated that this question, regarding the illegality, of the trial held under s. 25 lA, was raised, in the present proceedings, when the appellants had filed in the High Court, a criminal revision, chal- lenging their conviotion, by the two Subordinate Courts.
This question, was referred, by a. learned Single Judge by his order dated August 3, 1965, to a Full Bench, for consideration. The Full Bench, in its decision, reported as Ashiq Miyan v. State(") has overruled the earlier decision, in Sardar Khan's case('). The
learneLl Judges, of the Full Bench, have rejected the contention of the appellants, that their trial was vitiated, by the fact th~t the procedure, prescribed by s. 251A, Cr.P.C., has been adopted. The Full Bench has further held thats. 251A, Cr.P.C., is attracted to a case, instituted under the Opium Act, on a report made by a police officer, and that it logically follows that the trial, of an accused, under the Opium Act, instituted on a report, made by an excise officer, would also be governed, by s. 25 lA.
Accord- ing to the appellants, this decision of the Full Bench, is erroneous. and counsel wants the earlier decision of the Madhya Pradesh High Court, in Sardar Khan's case('), to be restored.
Mr. I. N. Shroff, learned counsel for 'the State pointed out that the case against the appellants was investigatt:d, in accord- ance with the provisions, contained in the Opium Act and was initiated, on a report, made by a police officer. These facts have been noted, by the learned Judges of the Full Bench, and it is, on that basis, >that ultimately, after a reference to the decision of this Court, in Amalshah v. The State of Madhya Pradesh('), that the Full Bench has held that the trial is not vitiated.
It is not really necessary, for us, to consider the larger ques- tion, as to whether, when an excise officer makes a report, under s. 20-G, of the Act, whether the trial, following it, in such a case, would be governed by s. 25 lA. In fact, the Full Bench has gone further, and expressed an opinion, on this point also, that even in such a case, the trial would be governed, by s. 251A,Cr.P.C. We. express no opinion, on that aspect of the matter.
We will confine our decision, to the present case, on the basis that the crime was investigated, in accordance with the provisions, con- tained in the Opium Act and the case was initiated against the cappe11ants, on a report, made by a police officer.
The first information report, Exhibit P-20, shows that the search of 'the appellants' house was conducted, by the Sub-Inspec- tor of Police, Malharganj Police Station, and the recovery of opium, as well as the arrest of the appellants, were made, by the (l) A.LR. 1963 M.P. 337.
(2) A.I.R.1966 M.P. 1 (F.B.). (3) Unreported decision, in Cr!. A. 201of1963, decided on 11-1' -1964. Sl:PRO!E COCRT RF.PORTS [1969) i S.CR. said ofticer. Investigation was also done, by him.
Ultimate!,·, the report, which is St) led as a 'complainr, and dated October 23. J 960, was mac.Jc and signed by Tehsildar Singh, Sub-Inspector of Police, Malharganj Police Station, as the Investigating Oflicer. It is on the basis of that report. that the Magistrate. in ·this case, conducted the trial of the appellants.
We have already referred to the Full Bench decLsion, of the \1adhya Pradesh High Court. wherein these facts have been stated. No doubt, counsel for the appellants has urged that. even
under those circumstances. a trial, for an offence under the Opium Act, cannot be held. under s. 251-A. We arc not ind1ned to accept, this contention of the learned counsel. More or Jess. a
similar question arose. before the Constitution Bench af this Court. in Amalslzail's Case('). Similar contentions were also urged. and reliance was placed, on s. 20-G. of the Act, as applied to Madhya Pradesh.
This Court. after referring to the material provisions of s. 20-G, by its judgmertt. dated December JI. 1964, declined to express an opinion on 1he larger question, that the report. made by an excise officer, cannot he held to be a police report. so as to attract s. 251-A. of 1he Code of Criminal Procedure.
Jn that decision. this Com:t actually found that the proceedings, against the appellant before them, coJllmenced on the report, of a police ofliccr, and not on the report. of an excise officer. and that the complaint, lodged before the Magistrate. had been signed by the police officer. who investigated the offence.
On these findings. this Court held that. inasmuch as the proceedings commenced, on a report made by a police oflicer. s. 25 J-A, Cr.P.C. in tenns. would apply, and hence the trial held, under that section, in that case, was perfectly legal.
Therefore. it will be seen. that in res- pect of a trial. conducted by a \fagistrate, on a report made by a police oflicer, under the Opium Act. as applicable to the State of Madhya Pradesh, for an offence under that Act. this Court held that s. 251-A. Cr.P.C. applied.
Tn the case before us, on the facts, it is clear 1hat the investi- gation was clone by a police oflicer. the seiwre of 1he articles and the arrest. of the accused. were effected, hv a police officer. and the complaim or report, dated October 23. 1960. to the :v!a~is trate, was made, by the Police Officer. It is. on this report of the police officer. that the Magistrate acted further, and the trial also followed.
Under those circumstances, it is clear that s. 251-J\. Cr.P.C. directly applies, and it was. in accordance with the pro- cedure. indicated in that section, that the trial was held.
Jr follows. th·,1t there is no illegality. in the trial. The result is that this appeal fails, and is dismissed. Y.P. Appeal dismis.•rd. ··–··—– (!) L'nr..:r1Jrtcd decision in Crl. A. ::!01of1963 decided on I 1-12-19(4. c