Jaddu Lohar vs Emperor

Ganga Nath, J.—This is an application in revision by Jaddu Lobar against his conviction and sentence under Sections 13 and 14, Opium Smoking Act. The house occupied by the Applicant was raided by the police on 12th January, 1941, at about 8 P.M. The accused with another person was found in the house with prepared opium and apparatus for smoking opium. A charge-sheet was submitted by the Sub-Inspector to the learned District Magistrate for "sanction to prose:ute " It appears from the charge sheet that the prosecution was sanctioned, but no report or complaint was made by the learned District Magistrate himself. u/s 25 of the Opium Smoking Act no Magistrate shall take cognizance of an offence punishable under the Act except on the complaint or report of the Collector or an officer of the Excise Department not below the rank of an Excise Inspector.

It has been contended, and, I think rightly, that the learned Trial Magistrate had no jurisdiction to take cognizance of the offence as no complaint or report was made by the Collector. Sanction of prosecution is not the same thing as making a complaint or report because the prosecution might be sanctioned and yet there may be no complaint or report. The trial, therefore, was without jurisdiction. It is, therefore, ordered that the application be allowed and the conviction and sentence of the Applicant be set aside. The Applicant need not surrender to his bail. The fine, if paid, be refunded.