minal Appeal No 128 of 1966
Appeal by special leave from the judgment and order dated December 23 1965 of the Madhya Pradesh High Court Indore Bench in Criminal Revision No 131 of 1964
C L Sareen and R L Kohli for the appellants
I N Shroff for the respondent
The Judgment of the Court was delivered by Vaidialingam J
This is an appeal by special leave in which the appellants challenge the propriety and correctness of the order of the Madhya Pradesh High Court confirming their conviction under section 120B IPC and section 9a of the Opium Act 1878 Act I of 1878 hereinafter called the Act
Appellants 2 and 3 are the sons of the first appellant and the 4th appellant since deceased was his nephew
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 section 120B IPC and section 9a 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 morning of September 19 1960 at about 9 am 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 possession 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 sections 120B IPC and section 9a of the Act and sentenced to undergo two years  rigorous imprisonment 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 December 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 attract section 120B IPC 2 neither the High Court nor the two Subordinate Courts have considered the vital question viz whether the evidence establishes that the four appellants were in conscious possession of the opium recovered from the house and 3 the trial which was held under section 251A of the Code of Criminal Procedure was vitiated as it should have been properly held only under section 252 Cr
So far as the first two contentions are concerned in our opinion it is really an attack on the concurrent findings recorded 190 by the Magistrate and on appeal by the Sessions Judge and which have been accepted by the High Court in revision
The Magistrate as well as the learned Sessions Judge have posed one of the questions for consideration as to whether the appellants can be considered to have been in conscious possession of the opium recovered from the house
It is in considering this question 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 tile recovery and that it was
possible for some outsider to have thrown the 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 courtyard 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 the appellants along with others had also conspired together to obtain deal in and possession 
The further finding is that the 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 rejected
That leaves us for consideration the third contention noted above that the trial in this case ought to have been held under s252 Cr
PC and it is vitiated as it has been held under section 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 procedure for trial in respect of offences under the Act and other incidental matters connected therewith have been laid down in sections 20 to 20 1 introduced in the Act by the Opium Madhya Pradesh Amendment Act 1955 MP Act XV of 1955
Counsel urged that the officer empowered to investigate offences under section 20 be he an officer of the Department of Excise
or a police officer must be considered to be an excise officer and though the report made by such an officer is treated under section 20G of the Act as applied to Madhya Pradesh as a report
made by a police officer under s190 1 b Cr
PC it cannot be held to be a police report within the meaning of section 251A and hence the trial should have been held in this case not under s251 A but under section 252 Cr
PC Counsel referred us to the 191 decision of the Madhya Pradesh High Court in Sardar Khan Multan Khan vs State1 in this connection
Counsel further stated that this question regarding the illegality of the trial held under section 251A was raised in the present proceedings when the appellants had filed in the High Court a criminal revision challenging their conviction 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 vs State2 has overruled the earlier decision in Sardar Khan s case1
The learned Judges of the Full Bench have rejected the contention of the appellants that their trial was vitiated by the fact that the procedure prescribed by section 251A Cr
PC has been adopted
The Full Bench has further held that section 251A CrPC 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 section 251A
According 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 case1 to be restored
Mr 1
N Shroff learned counsel for the State_ pointed out that the case against the appellants was investigated in accordance 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 vs The State of Madhya Pradesh3 that the Full Bench has held that the trial is not vitiated
It is not really necessary for us to consider the larger question as to whether when an excise officer makes a report under section 20 G of the Act whether the trial following it in such a case would be governed by section 251A
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 section 251ACr
PC 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 appellants 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 Inspector of Police Malharganj Police Station and the recovery of opium as well as the arrest of the appellants were made by the 1 AIR 1963 MP 337
2 AIR 1966 MP 1 FB
3 Unreported decision in Crl
A 201 of 1963 decided on II 1 2 1964
192 said officer
Investigation was also done by him
Ultimately the report which is styled as a complaint  and dated October 23 1960 was made and signed by Tehsildar Singh Sub Inspector of Police Malharganj Police Station as the Investigating Officer
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 decision of the Madhya 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 section 251 A
We are not inclined to accept this contention of the learned counsel
More or less a similar question arose before the Constitution Bench of this Court in Amalsh s Case1
Similar contentions were also urged and reliance was placed on section 20 G of the Act as applied to Madhya Pradesh
This Court after referring to the material provisions of section 20 G by its judgment dated December 11 1964 declined to express an opinion on the larger question that the report made by an excise officer cannot be held to be a police report so as to attract section 251 A of the Code of Criminal Procedure
In that decision this Court actually found that the proceedings against the appellant before them commenced on the report of a police officer 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 officer section 251 A Cr
PC in terms would apply and hence the trial held under that section in that case was perfectly legal
Therefore it will be seen that in respect of a trial conducted by a Magistrate on a report made by a police officer under the Opium Act as applicable to the State of Madhya Pradesh for an offence under that Act this Court held that section 251 A CrPC applied
In the case before us on the facts it is clear that the investigation was done by a police officer the seizure of the articles and the arrest of the accused were effected by a police officer and the complaint or report dated October 23 1960 to the Magistrate 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 section 251 A Cr
PC directly applies and it was in accordance with the procedure indicated in that section that the trial was held
It follows that there is no illegality in the trial
The result is that this appeal fails and is dismissed
YP Appeal dismissed
1 Unreported decision in Crl
A 201 of 1963 decided on 11 12 1964


Summary:
On receiving information that opium was being smuggled and secretly kept in the house of the appellants the Sub Inspector of Police with a police party raided their house and recovered large quantity of opium from the courtyard of the house
The Sub Inspector of Police made the report and the trial followed
The appellants  plea that they were living separately and that one A had thrown the bundle was rejected by the courts below and they were convicted under section 120B IPC and section 9a of the Opium Act
In the appeal to this Court the appellants contended that the trial which was held under section 251A of the Code of Criminal Procedure was vitiated as it should have been properly held only under section 252 Cr
PC HELD  There was no illegality in the trial
In this case the investigation was done by a police officer
the seizure of the articles and the report to the Magistrate was made by the Police Officer
It was on this report of the police officer that the Magistrate acted further and the trial also followed
In respect of a trial conducted by a Magistrate on a report made by a police officer under the Opium Actas applicable to the State of Madhya Pradesh for an offence under that Act section 251A Cr
PC is applicable
192 F H Amalshah vs State of Madhya Pradesh unreported decision in Cr
A No 20163 dt
11 12 64 followed