http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: ASHIQ MIYAN AND ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 01/05/1968

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAMASWAMI, V.

CITATION:  1969 AIR    4            1969 SCR  (1) 188

ACT: Opium  Act  (1 of 1878), as applicable  to  Madhya  Pradesh- Seizure and Report by Police Officer-Trial under Cr.  P.  C. whether s. 251A or s. 252 Cr.  P.C . applicable.

HEADNOTE:  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 s. 120B I.P.C. and s. 9(a) of the Opium Act.  In the  appeal to  this  Court, the appellants contended  that  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. 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, s. 251A  Cr. P.C. is applicable. [192 F-H] Amalshah v. State of Madhya Pradesh, unreported decision, in Cr. A. No. 201/63, dt. 11-12-64, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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 s. 120B,  IPC,  and  S. 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 s. 120B, IPC., and S. 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 ss. 120B,  IPC.,  and  S. 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 S. 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 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 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 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 s. 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 s. 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 s. 251A, and 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 191 decision,  of the Madhya Pradesh High Court in  Sardar  Khan Multan  Khan  v.  State(1),  in  this  connection.   Counsel further stated that this question, regarding the illegality, of the trial held under s. 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 v. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

that the procedure, prescribed by s. 251A, Cr.P.C., has been adopted.   The  Full Bench has further held  that  s.  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. 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  v. 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  S.  20-G, of the  Act,  whether  the  trial, following it, in such a case, would be governed by s.  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 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 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 s.  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 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 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 s. 251-A,  of  the Code  of Criminal Procedure.  In that decision,  this  Court actually  found that the proceedings, against the  appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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, s.  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 s. 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  s.  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. 193