Case ID: 2404

Judgment:
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 9(a)	 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 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 morning 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 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 9(a)	 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	 s.252	 Cr. P.C.	 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 (M.P. 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 s.190 (1) (b)	 Cr. P.C.	 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 s.251 A	 but under section 252	 Cr. P.C. Counsel referred us to the 191 decision	 of the Madhya Pradesh High Court in Sardar Khan Multan Khan vs State(1)	 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 State(2) has overruled the earlier decision	 in Sardar Khan 's case(1). 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. P.C.	 has been adopted. The Full Bench has further held that section 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 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 case(1)	 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 Pradesh(3)	 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 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 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) A.I.R. 1963 M.P. 337. (2) A.I.R. 1966 M.P. 1 (F.B.). (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 Case(1). 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. P.C.	 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	 Cr.P.C.	 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. P.C.	 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. Y.P. 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 I.P.C. and section 9(a) 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. P.C. 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 Act	as applicable to the State of Madhya Pradesh	 for an offence under that Act	 section 251A Cr. P.C. is applicable. [192 F H] Amalshah vs State of Madhya Pradesh	 unreported decision	 in Cr. A. No. 201/63	 dt. 11 12 64	 followed.