Spencer, J.:— The question has been raised whether the Second Class Magistrate who tried this case acted without jurisdiction in trying a case under the Opium Act.
2. In S. 3 of the Act a Magistrate has been defined as a Presidency Magistrate, a Magistrate of the First Class or (when specially empowered by the Local Government to try cases under this Act) a Second Class Magistrate.
3. Now it is conceded that this particular Second Class Magistrate has not been empowered by name or by office by any notification issued by the Local Government under the Opium Act. The only notification is that published in the Fort St. George Gazette, Part I, dated 12th October 1880, whereby the Governor-in-Counoil empowered all Magistrates of the Second Class to try cases under the Opium Act, 1878.
4. The question therefore is whether this investment of powers was an act of “specially empowering” Magistrates of the Second Class; for if it was not so, it appears that the Local Government were not acting within their powers.
5. Section 39 of the Cr PC throws light on what is meant by specially empowering persons.
6. It declares that the Local Government may empower classes of officials generally by their official titles or persons specially by name or in virtue of their office. When therefore a class of officials is invested with powers to try certain offences, it would appear that they are “generally” empowered. The word “generally” is in contrast to the word “specially,” which is used in speaking of individuals.
7. It is urged by the Public Prosecutor that the power to try offences under special or local enatsments is itself a special power and that persons so invested with powers may be described as specially empowered; but this is not the sense in which I understand the Imperial Government to have used, the word in framing the section. It follows that the trial was without jurisdiction. We set it aside and order accused 1 to be retried by such First Class Magistrate as the District Magistrate may direct. We see no reason to direct a retrial of the other accused, as they have already undergone their sentences and have been sufficiently punished, assuming that they are guilty.
Seshagiri Aiyar, J.:— I agree.
8. I Think Mr. Richmond is right in his contention that the notification of the Government of Madras, dated 12th October 1880, cannot confer upon all Second Class Magistrates in the Presidency the power to try opium cases. The definition section in the Opium Act gives a discretion to the Local Government to “specially empower Second Class Magistrates” with jurisdiction. The general authorization quoted to us is ultra vires of the powers given by the Act. Under the notification in question the Government have exercised powers by which they have enlarged the definition of “Magistrate” so far as their Presidency is concerned, I do not think this is permissible. The analogy of Section 39 of the Cr PC, is against the contention of the Public Prosecutor, which I shall presently notice. That section speaks of a “special authorization” and of a “general authorization.” I cannot accept the argument of the learned Public Prosecutor that the word “specially” in the Opium Act and in the Code of Criminal Procedure has reference to the extra or special powers conferred by the Government. Whether the authority is given by name to an individual or to a class, in either case the added power will be “special power”. The word “special” in S. 39 is inserted to contrast it with the word “general” following later on. I do not think the word “special” is used in the sense suggested by Mr. Grant. Moreover the notification of 1880 cannot have the effect of enlarging the powers of all Second Class Magistrates appointed since the date of its publication.
9. I agree that the Second Class Magistrate had no power to try this case. I also agree that there should be a retrial. It is not necessary to order the retrial of the other accused.
S.N/R.K
10. Conviction set aside.