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Laxminarayan Khemchand v. State
Structured Summary of the Opinion
Factual and Procedural Background
The applicant in revision was convicted under Section 9(a) of the Indian Opium Act as amended by the Madhya Bharat Act 15 of 1955 and sentenced to rigorous imprisonment for one and a half years and to pay a fine of Rs. 500 with further rigorous imprisonment in default. The conviction arose from the seizure, in the applicant's house, of about 4 seers (stated more precisely as 3 seers and 14 chhataks) of raw opium by a raiding party composed of excise officers, police officers and two local respectables (panchas).
The applicant maintained a factual defence that a head constable, a member of the raiding party, openly brought the bag containing the opium into the house and planted it there. That defence was disbelieved by both the Magistrate and the Sessions Court. The applicant filed the present revision repeating the planting plea and raising several legal grounds of challenge to the conviction and/or the trial procedure. The court records the applicant's legal contentions and disposes of the revision application by dismissing it.
Legal Issues Presented
- Whether the Madhya Bharat Act 15 of 1955 (which amended Section 9(a) of the Indian Opium Act) was ultra vires the Constitution under Article 254, despite being reserved for the President's consideration and having received the President's assent.
- Whether the trial procedure adopted — under Section 251A of the Code of Criminal Procedure (Cr PC) — was incorrect and the trial should instead have been conducted under Section 252 of the Cr PC, thereby giving the accused two opportunities to cross-examine witnesses (once before and once after charge).
- Whether it was improper for the prosecution before the Magistrate to be conducted by an Excise Officer who had investigated the case and who was, or was likely to be, a witness.
- Whether alleged irregularities in the raid or investigation (non-recording by police of the information leading to the search; panchas not entering the house; panchas not from the immediate neighbourhood; and the non-examination of head constable Ramsingh) vitiated the trial or conviction.
Arguments of the Parties
Applicant's Arguments
- The opium was planted in his house by a head constable who brought the bag in and left it there (factual defence of planting).
- The Madhya Bharat Act 15 of 1955 is ultra vires Article 254 of the Constitution (challenge to the State amendment of Section 9(a) increasing punishment).
- The procedure under Section 251A of the Cr PC was wrongly used; the trial should have followed Section 252, which would have given the accused two opportunities for cross-examination and thus the applicant was prejudiced.
- The prosecution before the Magistrate was conducted by the same Excise Officer who had investigated the case and was a witness, making the prosecution irregular.
- Other irregularities: (a) information leading to the search was not reduced to writing by the police; (b) the panchas did not enter the house; (c) the panchas were not from the immediate neighbourhood; and (d) head constable Ramsingh had not been examined.
The opinion does not set out detailed, adversarial arguments advanced by the prosecution. The court's responses and factual findings are recorded in the reasoning below.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Premthand Khetri v. State, 1958 Cr LJ 622 : (AIR 1958 Cal 213) | Identifying that cases founded on reports by excise officers may be treated as cases on police report (warrant cases under S. 251A) rather than as complaint cases (S. 252). The Calcutta High Court pointed out inconveniences in applying S. 251A to excise officer reports and suggested the use of S. 252 in some circumstances. | The court noted the Calcutta High Court's observations but affirmed this High Court's settled view that cases on an excise officer's report are on the same footing as police reports (cognizable under Section 190(b)), hence properly dealt with under Section 251A of the Cr PC. The court thus applied the precedent’s subject-matter but rejected adopting the Calcutta court's suggested change in practice for this State. |
Court's Reasoning and Analysis
The court addressed the applicant's contentions sequentially and confined itself to matters appearing on the record.
- On the planting defence: The court treated the planting claim as a factual matter already considered and rejected by both the Magistrate and the Sessions Court. It observed that the applicant did not suggest that any raiding party member openly entered with the bag and that the applicant did not immediately protest at the time of recovery. The court declined to re-agitate this factual plea in revision.
- On the constitutional challenge under Article 254: The court analysed the constitutional distribution of legislative subjects. It observed that Entry 59 of the Union List (List I) — “Cultivation, manufacture and sale for export of opium” — is not exhaustive of all opium-related matters. Entry 19 of the Concurrent List (List III) covers “Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium.” Possession without licence, storage and sales within the country do not fall within cultivation/manufacture/sale for export (Entry 59) but fall under the more general Entry 19 (Concurrent). The court therefore held that the Madhya Bharat amendment regulated matters falling within the Concurrent List, was properly reserved under Article 254(2), and had received the President's assent (on 5-6-1955). Consequently, the challenge that the State amendment was ultra vires and that punishment could not exceed one year failed.
- On the procedural contention (Section 251A v. Section 252): The court stated the settled view of this High Court that cases based on an excise officer's report are on the same footing as police reports (cognizable under Section 190(b)), and therefore the warrant-case procedure in Section 251A applies rather than the complaint-case procedure in Section 252. The court explained the rationale behind Section 251A: in such cases an investigation has already been carried out by a public authority and the relevant material (reports, witness statements, list of recovered property) is before the Magistrate, enabling him to determine prima facie sufficiency without re-conducting an inquiry. By contrast, in complaint cases the Magistrate records evidence himself at that stage. The court concluded that even if Section 251A had been used in a case more properly under Section 252, no prejudice resulted to the accused here because he had had an open trial, availed himself of cross-examination, was examined under Section 342 Cr PC, and had the option to produce defence witnesses. Hence there was no substantial miscarriage of justice from the procedure followed.
- On the allegation that an investigating Excise Officer conducted the prosecution: The court found no proof on the record that the investigating officer was the prosecuting officer in Court. The court recorded that while it is not improper in principle for an Excise Department officer to be detailed to conduct prosecutions generally, an investigating officer conducting the case would, in effect, be a witness and that would be improper. However, in this case the record did not establish the allegation; at most there was a Magistrate's note that a witness had pointed out the Prosecuting Inspector as an officer who led the raid. The court regarded such identifications as common mistakes and noted that neither the Magistrate's court nor the Sessions Court was confronted with this allegation explicitly in those terms. The court emphasised that the conviction was based on evidence rather than on any particular person being the Prosecuting Inspector.
- On other alleged irregularities (non-recording of information leading to search; whether panchas entered the house; panchas not immediate neighbours; non-examination of Ramsingh): The court observed that the investigating officer was not asked if he had reduced to writing the information leading to the search nor was the Magistrate requested to verify that fact at trial; such points could not be agitated at the revision stage. Regarding panchas, the court held it was immaterial whether they entered the room: what mattered was that they were able to see what was occurring during the raid and where the seized property was brought from — in small houses this can be from outside. As to the panchas' residence, statutory requirement is for panchas from the locality and of some respectability, not that they be immediate neighbours; the court noted practical realities where immediate neighbours may not wish to act as witnesses. On Ramsingh, the court observed the record did not show whether he was available or within the reach of the Court nor was he cited in the report, and no request to produce him had been made.
Having considered these points, the court concluded there was no substance in the applicant’s legal objections and that the applicant had not been prejudiced by the procedure followed. The court further noted that the punishment was not excessive relative to the quantity of opium seized.
Holding and Implications
HOLDING: The revision application is dismissed. The court expressly states: "I find that there is no force in this application. The punishment is not excessive, considering the quantity of opium. The application is summarily dismissed." The final line of the opinion records: "Application dismissed."
Implications:
- Direct effect on the parties: The dismissal leaves the conviction and sentence intact as against the applicant in this revision proceeding (the court dismissed the application for revision challenging conviction and/or sentence and declined to disturb the findings of the lower courts on the facts or law raised in this petition).
- On legal principles: The court reiterated the High Court’s settled position that cases on an excise officer's report are to be treated like police reports (cognizable under Section 190(b)) and are properly processed under Section 251A of the Cr PC. The court also accepted the view that State amendment (Madhya Bharat Act 15 of 1955) to Section 9(a) was valid as relating to matters within the Concurrent List and having received Presidential assent under Article 254(2).
- Broader precedent: The opinion applies and states the High Court's settled approach on the procedure for excise officer reports but does not expressly state that it is laying down a new or broader precedent beyond affirming existing views and the disposed application. No novel overriding precedent was declared beyond the court's explanatory reasoning.
JD/D.H.Z
1. The applicant in revision has been convicted under Section 9(a) of the Indian Opium Act, as amended by the Madhya Bharat Act 15 of 1955 and sentenced to suffer rigorous imprisonment for a year and a half and to pay a fine of Rs. 500/- with further rigorous imprisonment in default. This was for the possession without licence of about 4 seers of raw opium, by the applicant in his house and seized by a raiding party consisting of excise officers, police officers and two respectables (panchas) of the locality. The applicant set up a plea that the bag containing 4 seers, or to be more precise 3 seers and 14 chhataks opium, was openly taken into the house by a head constable, a member of the raiding party, and planted there. This was disbelieved both by the Magistrate and by the Sessions Court. The applicant has come here repeating the story of planting which is of course a plea of fact, and adding the following grounds of law (1) that the Madhya Bharat Act 15 of 1955 is ultra vires of Article 254 of the Constitution even though it had been reserved for consideration by the President and his assent obtained (2) secondly, the procedure adopted for trial was one under Section 251-A of the Cr PC, which was illegal as the one in Section 252 of the Cr PC, should have been followed. The applicant has been prejudiced because be got only one opportunity to cross-examine and not two as he could have got had the proceedings been under Section 252 of the Cr PC
2. In this connection it is stated that the view taken by the Calcutta High Court in Premthand Khetri v. State, 1958 Cr LJ 622 : (AIR 1958 Cal 213) should be adopted by this Court also in preference to the view hitherto now (sic) that cases on reports by excise officers are really cases on Police report and not ones on complaint (3) thirdly, that the trial was irregular because the prosecution before the Magistrate was conducted by an Excise Officer who was no other than the officer who conducted the investigation and was himself a witness, and (4) fourthly, it is alleged that there are some irregularities such as (a) non-recording by the police of the information leading to the search (b) that the panchas did not enter the house (c) that the panchas were not from the immediate neighbourhood and (4) that one member of the raiding party, head constable Ramsingh, had not been examined.
3. On the defence that the opium had been planted it is unnecessary to say anything as it relates to facts and has been considered by the trial Court and the appellate Court. It is significant that it was not suggested that one member of the raiding party managed to enter into the house openly with the canvas bag containing 4 seers or opium. It is also neither alleged nor suggested that immediately on the recovery, the applicant himself called out that a member of the raiding party walked in with the bag and planted it in the house. Any way the story of planting was disbelieved by both the lower courts and need not be re-agitated in this revision.
4. Then it is urged that the State Legislature of Madhya Bharat was constitutionally incompetent to amend Section 9(a) of the Indian Opium Act and thereby enhance the punishment, “Opium” being entry No. 59 in the Union List. If the amendment of the Madhya Bharat is held to be ultra vires then the punishment could only be one year's rigorous imprisonment or less under Indian Opium Act. This argument fails to note that entry 59 in List I is not exhaustive in regard to opium. Actually the control by licence or otherwise of the possession, and storage and sales within the country of the opium is governed by entry 19 on the concurrent list. Entry 59 List I is “Cultivation, manufacture and sale for export of opium”, List 3 concurrent entry 19 “Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium”.
5. The provision for the punishment of a person who possesses opium without licence has nothing to do with cultivation or manufacture or sale for export. It is outside these three and as such it comes under the general entry (19 in List III)—regarding drugs and poisons. When Parliament enacts in regard to cultivation or manufacture or sale for export of opium it is acting in exercise of powers given by entry 59 in the Union List; but when it enacts in regard to other matters concerning opium, it is in accordance with entry 19 in the Concurrent List. Actually the Madhya Bharat Opium Act 15 of 1955 amends the provisions of Indian Opium Act not in regard to matters mentioned in (entry 59) List I, but in regard to some others. It was also reserved for the President's consideration under Article 254(2) as it was an amendment by the State Legislature of the provisions in the existing law on the subject in the concurrent List. President's assent was accorded, on 5-6-1955. Thus there is no force in the argument that the Madhya Bharat amendment is ultra vires and punishment could not exceed one year's rigorous imprisonment.
6. Whether the applicant should have been tried in accordance with Section 252 of the Cr PC is a question of no practical effect at this stage. He has had open trial with opportunity for cross-examination, which he has availed of, and examination under Section 342 of the Cr PC, and option to brine defence witnesses. His argument is that he should have been tried not in accordance with Sec. 251A as he has actually been, but in accordance with Section 252 of the Cr PC when he could have had the opportunity to cross-examine on two occasions once before and again after charge.
7. The settled view of this High Court is that a case on an excise officer's report is exactly on the same footing as a case on the report of a police officer, and not as one on complaint, that is one cognizable under Section 190(b) and not under 190(a) of the Cr PC. The procedure indicated in a warrant case of the first type is one set out in the S. 251-A and that in the latter, is the one in Section 252 of the Cr PC A reference has been made to 1958 Cr LJ 622 : (AIR 1958 Cal 213). In that (case?) are pointed out certain apparent inconveniences in applying S. 251A to cases on the excise officer's report with the suggestion that such cases may be tried in accordance with S. 252. In this State at all events cases of this class are only on “police reports”.
8. Any way, as far as the accused is concerned and even if the procedure indicated in S. 251A is followed in a case more properly coming under S. 252 there is no prejudice, the difference being on the manner in which the Court arrives at the prima facie case. The rationale behind S. 251A is that in that class of cases there has already been an investigation (elaborate or simple) by a public authority, which has recorded all the material on which the charge is going to be framed. There is a report and often a record of the statement of witnesses and a list of the recovered properties and the like. The Magistrate has to satisfy himself that these particulars have already been supplied to the accused; and then with these materials before him he should be in a position to decide if there is a prima facie case. So, applying his mind to these with or without the examination of the accused he can discharge him if he finds that the materials show that the charge is groundless. If, however, he finds that there is a prima facie case which he is competent to try then he frames the charge; the trial proper beginning only at this stage.
9. In a complaint case, on the other hand, there has been no investigation at the stage at which the accused comes and accordingly the magistrate has himself to examine the witnesses, as it were, in course of an investigation. Now it is open to the accused, who is already present, to show by cross-examination or by argument that the material now recorded is insufficient to support a charge, and to invite the Court to discharge him. Thus in principle there is no difference between the two procedures, the practical difference is that in the one case the material collected by the police during investigation is before the Magistrate, and in the other he had himself to record it after the appearance of the accused. Once the charge is framed and the trial has begun, the fact of the accused person having (or not having) had a chance of cross-examining before charge is of no significance. Thus I hold that for one thing, this case falls under S. 25IA on the view taken by this High Court, and for another, in any event the accused has not been prejudiced.
10. The next is an allegation that the excise officer who was a witness was himself conducting the prosecution. This is not proved from the record. There is nothing wrong on principle if an officer of the Excise Department has been detailed to conduct the prosecution in a class of cases before a Magistrate. But if he has investigated a particular case it is obviously improper for him to conduct it in Court. He will in fact be a witness. But in the present case there is no evidence on this allegation. All that the applicant has got is a Note by the Magistrate, that a witness had pointed out the Prosecuting Inspector himself as the Officer who led the raid. Such mistakes are common, and neither in the Magistrate's court nor in the Sessions Court was this allegation made in so many words. Any way the conviction is not based upon this or that person being the Prosecuting Inspector, but on evidence.
11. The other alleged irregularities can be examined at seriatim. The investigating officer was not at all asked if he had reduced to writing the information leading to the search, nor was the Magistrate requested to satisfy himself that it had been so written down. Certainly the point cannot be agitated at this stage. Again it does not matter whether the Panchas actually entered the room from which, the bag was brought out or whether they saw every tiling from outside. What is important is that they should be in a position to see what was going on during raid, and wherefrom the seized property is brought out. In the case of a small house or room, this can be done either by entering or seeing from outside. Similarly we do not know, whether Ram singh was available or within the reach of the Court, when the case was sent up. He was not cited in the report, and no suggestion or prayer was made in this, regard.
12. It appears that when the raid was on, the usual large crowd collected in front of the house. The Investigating Officer says that the two panchas came from the crowd; but the panchas say that they came from their respective houses, not in the immediate neighbourhood, but from another mohalla of the small town of Ratlam. The law provides for panchas from the locality, and of some respectability; but not that they should be the immediate neighbours. Often immediate neighbours will not come to witness raids, and the neighbourhood might be such that to get respectable witnesses one has to go a short distance.
13. I find that there is no force in this application. The punishment is not excessive, considering the quantity of opium. The application is summarily dismissed.
JD/D.H.Z
14. Application dismissed.
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