Lachmi Narain and Another vs Emperor

Das, J.—The petitioners have been convicted u/s 9 (c) of Act 1 of 1878 by the Deputy Magistrate in charge of Patna City and sentenced to undergo rigorous imprisonment for six months. The appeal to the learned Sessions Judge of Patna was dismissed. Shortly stated the facts are as follows

On the 27th October 1918, Tirbeni, who is an Excise Sub-Inspector, happened to pass an opium shop in which the petitioners served as salesmen. He entered the shop, checked the opium and found that the opium in the premises tallied with the account-books. He says that be had some suspicion that there might be opium in an adjoining house and in company with another Sub Inspector, who happened to come on the scene, be entered the adjoining house and then sent the other Sub-Inspector, whose name is Warasat Hussain, to get two search witnesses, and then they went to a particular room, found five cakes of opium weighing two Seers six Chbataks, and arrested one of the petitioners Lachmi Narayan, the other petitioner Paras Singh having run away. He took Lachmi Narain to the Police station, but conducted the investigation himself and submitted a report and a charge sheet upon which the learned Deputy Magistrate took cognizance.

The first question that has been argued before me is that the learned Deputy Magistrate was not properly in seizin of the case. As I have mentioned before, the prosecution was started on the report of Tirbeni and the learned Magistrate expressly states that be took cognizance on the report of Tirbeni, treating that report as a Police report.

This is wrong, as the learned Sessions Judge in his appellate judgment points out. But tbe learned Sessions Judge, making entirely a new case on behalf of the learned Deputy Magistrate, says that he must have taken cognizance u/s 190(1)(a) of the Code of Criminal Procedure. But it appears that if the Deputy Magistrate took cognizance of this case u/s 190(1)(a) of the Code, he did not in fact examine the complainant as, in my opinion, he was bound to do u/s 200 of the Code. It has been urged before me by the learned Government Pleader that omission to examine the complainant on oath is a mere irregularity which does not vitiate the subsequent criminal proceedings. I have dealt with this identioal point this morning in Mangu Koeri v. Emperor 51 Ind. Cas. 465 : 20 Cri. L. J. 481, (Criminal Revision No. 88 of 1919), and I have come to the conclusion that the examination of the complainant on oath is not a mere formality, but a condition precedent which must be strictly complied with. In my opinion the filing of a petition of complaint is the act of the party, and it is incumbent on the Magistrate to show in some way that he intends to proceed with the matter, and the only way in which he can express that intention is by examining the complainant on oath. If authority is needed for the proposition, it will be found in the latest decision of this Court reported as Jhuna Lal Sahu v. Emperor 41 Ind. Cas. 1032 : 2 P. L. J, 667 : 2 P. L. W. 152 : 18 Cri. L. J. 890, As a single Judge I am bound by the decision of this Court and agreeing with that decision I hold that the learned Deputy Magistrate was not properly in seizin of the case and that, therefore, all proceedings must be set aside.

But I do not rest my judgment on my view of law in this matter, because I am clearly of opinion that on facts there should not have been a conviction. The whole case must rest upon the evidence of the two Excise Sub-Inspectors, and it has been shown that they have been guilty of a series of irregularities which, in my judgment, have seriously prejudiced the petitioners. The whole judgment of the learned Sessions Judge is as serious an indictment of the methods adopted by Tirbeni as I have seen in the course of my experience and for the reasons which I shall presently give, it was, in my opinion, for the prosecution to show that having regard to the serious irregularities the accused were not prejudiced and that it was not for the accused to show that they were prejudiced.

In the first place, in contravention of the provisions of Section 14 of the Opium Act the Sub Inspector entered the premises after sunset, which he had no right to do. In the second place, in contravention of Section 103 of the Criminal Procedure Code he entered the premises without any search witnesses. The learned Sessions Judge himself says that unless the accused can show how he has been prejudiced by these irregularities, the conviction should stand. In my opinion these are statutory safeguards for the protection of accused persons so that it may not be in the power of Excise Officers or, for the matter of that, in the power of Police Officers to smuggle an article into a house and bolster up a false case against the persons with whom they may be on terms of enmity. It is with some object that the Legislature has provided the safeguards and when they are deliberately broken it is, in my opinion, not for the aooused to show that they have been prejudiced. The prejudice is, in my opinion, on the face of the record. They should not have entered the premises without search witnesses, the object being that it may not be in their power to smuggle articles into the house and bolster up a false case against them.

But I am not setting aside the conviction on this technical ground. I have got to examine whether the evidence on which the petitioners have been convicted is evidence which should have been relied upon by the Courts below. No doubt they have been guilty of very serious irregularities, as I have mentioned above, but that is not all, Section 20 of the Opium Act provides that "Every person arrested, and thing seized, u/s 14 or Section 15, shall be forwarded without delay to the officer in charge of the nearest Police station; and every person arrested and thing seized u/s 19 shall be forwarded without delay to the officer by whom the warrant was issued.

"Every officer to whom any person or thing is forwarded under this Section shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or thing". The provision as contained in Section 20 of the Opium Act is peremptory and it gave no option to the Excise Sub-Inspector to keep investigation in his own baud, or to keep the things seized in his custody. The object of the Section is plain. The object is that it may not be in his power to produce false evidence afterwards against the accused persons. But in this case he did not forward the opium seized to the nearest Police station either without delay or at all. He did not produce the opium seized until he gave his evidence in Court. Nor is this all. He kept investigation in his own hand, took a recognition bond from Lachmi Narain, whom he arrested, and which recognition bond contained a full confession of the guilt of Lachmi Narain. It has been found by the Court below that the thumb impreesion purporting to be the thumb impression of Lachmi Narain in the recognition bond in fact is not his thumb impression. The conclusion is that the document has been forged by somebody and as it has been produced by Tirbeni for the purpose of securing the conviction of the petitioners, very grave suspicion must attach to the part played by Tirbeni in the matter of arrest of the petitioners.

And yet the petitioners have been convicted on an admission alleged to have been made by Lachmi Narain to Tirbeni. It seems to me that it is impossible to rely upon the evidence of Tirbeni, having regard to the fact that the learned Sessions Judge has himself recorded a finding that the document produced by Tirbeni is not the document to which Lachmi Narain affixed his thumb impression. That being so, in my opinion the conviction must fail, both on facts and on law.

I would, therefore, set aside the conviction and the sentence passed on the petitioners.