P.K. Goswami, J.
1. This Criminal Revision is directed against the judgment of conviction under Section 5(a) of the Assam Opium Prohibition Act (Assam Act XXII of 1947), hereinafter called the 'Assam Act', and the sentence of rigorous imprisonment for four months and a fine of Rs. 200/-, in default rigorous imprisonment for another two months. This is the modified sentence passed by the learned Sessions Judge in appeal, in place of the earlier sentence of rigorous imprisonment for one year and a fine of Rs. 200/-, in default rigorous imprisonment for two months, passed by the Sub-divisional Magistrate, Sibsagar in the original trial.
2. The facts are very brief. The Excise Inspector of Sonari accompanied by the Assistant Excise Inspector and some constables searched the house of the petitioner, hereinafter called the accused, on 13th October, 1963 and recovered from inside his dwelling house one 'Tema' containing six tolas of opium. The opium was seized by the Excise Inspector and the accused was arrested. He was produced before a Magistrate on the following day. One witness was examined by the prosecution on that day and on his evidence a charge under Section 5(a) of the Assam Act was framed against the accused to which he pleaded guilty. Even in his statement under Section 342 of the Code of Criminal Procedure, he admitted that the opium was found in his possession and that he had kept it with him for sale. The learned Magistrate accordingly convicted the accused on his plea of guilty under Section 5(a) of the Assam Act and sentenced as above. In appeal, the learned Sessions Judge only considered the question of severity of the sentence and reduced the same as earlier noticed.
3. This revision application came up before me while sitting singly and having regard to the question of law raised regarding the illegality of the whole trial, I referred the matter to a Division Bench, and that is how it has come before us now.
4. It is contended on behalf of the accused that the entire trial was vitiated as the learned Magistrate failed to comply with the mandatory provisions of Section 251(a) of the Code of Criminal Procedure under which it is obligatory for the Magistrate to follow the procedure laid down under Section 251-A of the Code of Criminal Procedure.
5. It is apparent that in this case the learned Magistrate followed the procedure laid down under Section 251(b) and consequently the procedure in conformity with the provisions of Section 252 of the Code of Criminal Procedure. Section 251 of the Code of Criminal Procedure reads as follows:
251. In the trial of warrant-cases by Magistrates, the Magistrate shall,-
(a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and
(b) in any other case, follow the procedure specified in the other provisions of this Chapter.
Section 251-A may also be set out:
251-A. Procedure to be adopted in cases instituted on police report.
(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.
(2) If, upon consideration of all the documents referred to in Section 173, and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
(3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried.
(5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.
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Section 252 also should be set out:
252. (1) In any case instituted otherwise than on a police report, when the. accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate shall not. be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
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Under Section 254 of the Code of Criminal Procedure, charge is framed when an? offence appears to be proved after recording of evidence in accordance with Section 252 of the Code of Criminal Procedure.
6. The offence charged is under Section 5(a) of the Assam Act and is a cognizable offence. The procedure which is to be followed in a trial of this offence is also that of the warrant procedure. The only point therefore to be considered is whether the offences reported by Excise Officers under various sections of the Assam Act are to be treated as offences instituted on a police report. Chapter VII of the Assam Act describes the procedure, namely, Power to issue warrants (Section 19), Power of entry, search, seizure and arrest without warrant (Section 20) and Power of seizure and arrest in public places (Section 21). Section 22 may be noticed:
22. Mode of executing warrants and of making searches and arrests. - The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall, in so far as they are applicable, apply to the-execution of warrants and making of searches and arrests under this Act.
Section 24 provides for report of arrest and seizure by the officer making arrest or seizure to his immediate official superior within 24 hours. Section 25 prescribes for the disposal of persons arrested and articles seized. Section 26 may be quoted:
26. Power to invest Excise Officers, - The State Government may invest any officer of the Excise Department, not below the rank of Sub-Inspector, with the powers of an officer-in-charge of a Police Station for the investigation of offences under this Act.
Section 27 confers jurisdiction on different Magistrates to try offences and pass appropriate sentences authorised by the Act. While dealing with the provisions for security from habitual offenders to desist from committing offences, certain procedure has been laid down under Section 11, and under Section 11(6)(ii) it is provided that the enquiry shall be made as nearly as may be practicable according to the procedure prescribed for the trial of warrant cases in the Criminal Procedure Code, 1898, except that no charge need be framed. While dealing with externment of habitual smugglers under Chapter VI, under Section 17, the provisions in Chapter V of this Act, in so far as they are applicable, have been made to apply to all proceedings under Section 16. It appears, therefore, that in express terms the procedure laid down under the warrant procedure has been provided for only in respect of enquiry regarding the security and externment proceeding before the Criminal Court. In other cases, the procedure laid down in the Criminal Procedure Code will govern and indeed there is no dispute that the case had to be tried following the warrant procedure. The only controversy raised in this case centres round the point whether Section 251A or Section 252 and the succeeding Sections of the Criminal Procedure Code will apply.
7. For the purpose of applying Section 251-A of the Code of Criminal Procedure, it must be clear that the case was instituted on a police report. What is the meaning of the expression, 'police report'? Does it mean any police report, that is to say, a report given by a police officer or is it a report which is submitted at the conclusion of an investigation under Chapter XIV and hence a report given under Section 173 of the Code of Criminal Procedure? The argument on behalf of the accused is that since under Section 26 of the Assam Act the Excise Officers are invested with the powers of an officer-in-charge of a Police Station for the investigation of offences under the Assam Act, they are Police officers for all purposes and are, therefore, required under the law to carry out investigation in accordance with the provisions laid down under Chapter XIV of the Code of Criminal Procedure.
Chapter XIV opens with Section 154 regarding information in cognizable cases. Under this section it is incumbent on the officer-in-charge of a police station to reduce to writing any information relating to the commission of a cognizable offence given orally to him, and inter alia also to note the substance thereof in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. He has also to follow various other procedures as laid down under various other sections in this Chapter. For example, under Section 161(3) the police officer may reduce into writing any statement made to him in the course of an investigation, and if he does so, it is obligatory on his part to make a separate record of the statement of each such person whose statement he records. Section 162 provides that no statement made by any person to a police officer in the course of investigation, shall, if reduced into writing, be signed by the person making it. The statements recorded under Section 162, can be used only for the purposes mentioned and in conformity with the procedure laid down under this section.
Under Section 172, every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. Under this section, a case diary has to be maintained by the police officer which may be sent for by the Criminal Court. Section 173 may now be set out:
173. (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer-in-charge of the police station shall
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
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(4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
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It will, therefore, appear that under Chapter XIV of the Code of Criminal Procedure, an elaborate procedure is laid down for investigation of offences by the police officer and it is to be seen whether all the procedure laid down in this Chapter has to be complied with by the Excise Officers since they have been invested under Section 26 of the Assam Act with the powers of an officer-in-charge of a police station for investigation of the offences under the Assam Opium Prohibition Act.
8. The Assam Opium Prohibition Act is an Act to prohibit consumption (except for medicinal purposes) and smuggling of opium in the State. Although it creates certain offences and also provides for punishments, a detailed procedure for investigation and trial of these offences is not to be found in the four corners of the Act. In this connection it is convenient to set out Section 5 of the Code of Criminal Procedure:
5. (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the mariner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
From a perusal of the above provisions it is clear that offences under the Assam Opium Prohibition Act will have to be investigated according to the provisions of the Code of Criminal Procedure subject to any exceptions or any modifications of the manner or place of investigation contained in the Assam Act itself. We do not find any provision in the Assam Act regarding the procedure of investigation. Such a procedure of investigation under the Opium Act, 1878 is to be found under Sections 20 and 20-A to 20-1 of the Madhya Pradesh amendment of Section 20 of the Opium Act, and also Sections 20 and 20-A to 20-J of the West Bengal amendment of Section 20 of the Opium Act.
It, therefore, appears that both in West Bengal and Madhya Pradesh, so far as trial of offences under the Opium Act, 1878, is concerned, an elaborate procedure for investigation is laid down and the same has got to be strictly followed. Under the West Bengal amendment, Section 20-J(1) requires a diary to be maintained and under Section 20-J(2) the provisions of Sub-section (2) of Section 172 of the Code of Criminal Procedure, 1898, are made applicable in the case of every such diary. Section 20-G of the West Bengal Act lays down the jurisdiction of Magistrate on receipt of report from Excise Officer. Section 20-G is as if a substitute for Section 173 of the Code of Criminal Procedure and fulfils the requirements laid down under Sections 170 and 173 of the Code of Criminal Procedure. In view of these provisions in the West Bengal amendment, the Calcutta High Court took the view that the report of an Excise Officer is a Police report, but not so for the purposes of Chapter XIV of the Code of Criminal Procedure. This is the view which was taken by the Calcutta High Court in the case of Premchand Khetry v. The State : AIR1958Cal213 , where the following passage occurs:
Section 20-G, Opium Act, makes it clear that although an Excise Officer may not be a Police Officer in fact and in law, the report made by him is to be deemed to be a report by a Police Officer for the purposes of taking cognizance of the offence reported.
Although Section 20-G of the Opium Act makes an Excise Officer's report of an opium offence a report made by a Police Officer, it does not make it a 'police report' in the special and restricted sense of that term as used in the Code with respect to reports of offences made by the Police.
This view was taken in spite of the fact that the West Bengal amendment contained provisions almost approximating the procedure laid down under Chapter XIV of the Code of Criminal Procedure. The same view was taken by the Madhya Pradesh High Court, as will appear from a decision of that Court in the case of Sardar Khan Multan Khan v. State AIR 1963 Madh Pra 337. The following observations in that decision are apposite:
Even in view of Section 20-G of the Opium Act, a complaint filed by an Excise Officer under the Opium Act cannot be deemed a case instituted as a case on Police report as contemplated under Section 251-A, Cr.P.C.
This view was taken even though there were provisions in the Madhya Pradesh Act amending Section 20 of the Opium Act prescribing a detailed procedure of investigation similar to the West Bengal amendment and closely resembling the procedure of investigation laid down under Chapter XIV of the Code of Criminal Procedure.
Both in the Calcutta High Court as well as in the Madhya Pradesh High Court, the question had to be considered in the light of the provisions of the respective State amendments of the Opium Act whereby a special procedure of investigation has been laid down for the two States. In the Assam Act there is no provision for any kind of investigation of an offence under the said Act. It, therefore, follows that while investigating offences under the Assam Opium Prohibition Act, the officers must when so doing comply with Section 5(2) of the Code of Criminal Procedure which provides for investigation of offences against other laws in accordance with the Code of Criminal Procedure. This being the position, provisions of Chapter XIV so far as they are applicable to an investigation of an offence under the Assam Act, must be complied with. In this context an argument was advanced by the State that Chapter XIV cannot be made applicable as the very basis of investigation under Chapter XIV is an information duly recorded under Section 154 of the Code of Criminal Procedure. In other words, no investigation under this Chapter, according to the learned Counsel for the State, can take place unless an information relating to the commission of a cognizable offence has been reduced to writing by an officer-in-charge of a police station. The submission is that informations regarding offences under Section 5(a) of the Opium Act, as in the instant case, are bound to be secret informations and if these are required to be written down and the man required to sign these informations and other technical procedure as laid down under Chapter XIV is complied with, lot of delay in investigation will occur defeating the very objects of the Act in trying to detect and prevent crimes of this description.
This argument is sought to be met by Mr. Bhattacharjee, the learned Counsel appearing as amicus curiae at the request of the Court, by referring to a decision of the Privy Council in the case of Emperor v. Nazir Ahmad AIR 1945 PC 18. It is useful to quote the following passage:
In the case of cognizable offences, receipt and recording of a first information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way, but there is no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157 when directing that a Police Officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances supports this view.
It is true that there may be other difficulties and embarrassment in the way of the Excise Officers conducting investigation under the Assam Opium Prohibition Act if the provisions laid down under Chapter XIV have to be strictly complied with. The question of embarrassment in investigation, if certain provisions of law are enforced, is a matter of policy which has got to be left to the Legislature and the Courts cannot delve into that region in order to come to a conclusion in law. There is a lacuna in the Assam Opium Prohibition Act making no provisions for investigation of these offences and in absence of any special provisions in that behalf, the procedure laid down in the Code of Criminal Procedure is applicable. On the top of that, Section 26 of the Assam Act provides for investigating officers of the Excise Department not below the rank of Sub-Inspector with powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
Section 25 of the Assam Act also may be read in this connection:
25. Disposal of persons arrested and articles seized:
(1) Every person arrested and article seized under a warrant issued under Section 19 shall be produced within 24 hours of such arrest and seizure, exclusive of the time for actual transit, before the authority by whom the warrant was issued.
(2) Every person arrested and article seized under Section 20 or 21 shall be produced within 24 hours of such arrest and seizure, exclusive of the time for actual transit, before the officer-in-charge of the nearest Police station or the nearest officer of the Excise Department empowered under Section 26.
(3) The officer to whom any person or article is forwarded this section shall, with all convenient despatch, take such measures as may be necessary for the disposal, according to law, of such person or article.
Not having made any provision for the mode of investigation, it is left under I Section 25(3) of the Assam Act to the officer named therein to take such measures as may be necessary according to law. If this is the only guide under the Assam Act to these officers for the purpose of carrying out investigation of offences under the said Act, the procedure may vary with each officer's understanding of what the law is. The procedure laid down cannot be left so vague as that. In absence of anything to the contrary in the Assam Act, it will be incumbent on the officers investigating offences under the Assam Act to follow the procedure laid down for investigation of cognizable offences under the Code of Criminal Procedure and these provisions are to be found in Chapter XIV of the Code. Whatever justification there may be for holding that the report of an Excise Officer under the West Bengal and the Madhya Pradesh Acts is not a police report as contemplated under Section 251-A, as the same has not been submitted under Section 173 of the Code of Criminal Procedure at the conclusion of an investigation under Chapter XIV of the Code but under Section 20-G of the Opium Act the said reasoning per se would not convert an Excise Officer's report of an offence under the Assam Act into a Police report to attract the provisions of Section 251-A of the Criminal Procedure Code.
With respect, the decisions of the Calcutta High Court and the Madhya Pradesh High Court, referred to above, in view of the procedure laid down in the West Bengal and Madhya Pradesh Acts, are correct; but, these decisions are of no assistance in the present case to hold that even under the Assam Act, where there is no trace of a procedure of investigation laid down, the ratio decidendi of these cases will govern. The learned Judges of the Calcutta and Madhya Pradesh High Courts had not to consider a case where there was no particular procedure prescribed for investigation of cases under the Opium Act. A question, therefore, still remains whether an Excise Officer's report of an offence under the Assam Act can be held to be a 'police report' as contemplated under Section 251-A of the Code of Criminal Procedure. The expression 'police report' in Section 251-A must be a report emanating from a police officer as such. The fact that an Excise Officer is invested with the powers of an officer-in-charge of a Police Station ?does not make his report a Police report. It will still be treated as an offence report submitted by an Excise Officer even though the Excise Officer may be invested with the powers of a Police Officer under Section 26 of the Assam Act and may when required carry on investigation of the case under the provisions of the Code of Criminal Procedure as far is they are applicable. Yet, for this reason alone the report submitted by an Excise Officer cannot be a Police report under Section 251-A of the Criminal Procedure Code. The expression 'Police report', which is not defined in the Code ?of Criminal Procedure, should be given a popular and accepted meaning which is in best accord with the common understanding of people. By long-drawn process of reasoning the expression 'Police report' should not be given a meaning which does not fulfil the first essential, namely that it must be a report of a police officer enrolled or appointed as such and without any veil whatsoever. Their Lordships of the Supreme Court had to consider in the case of State of Punjab v. Barkat Ram : [1962]3SCR338 , whether the Customs Officer is a Police Officer for the purposes of Section 25 of the Evidence Act. Their Lordships at one place observed as follows:
The words 'police officer' are therefore not to be construed in a narrow way, but have to be construed in a wide and popular sense, as was remarked in Queen v. Hurribo ILR 1 Cal 207, where a Deputy Commissioner of Police who was actually a police officer and was merely invested with certain magisterial powers was rightly held to be a police officer within the meaning of that expression in Section 25 of the Evidence Act.
9. Besides, refusal to give an ordinary and natural meaning to the expression 'police report' and equating an Excise Officer's report with a Police report will result in drastic consequences affecting the procedure of a criminal trial. If the Excise Officer's report is held to be a police report, the case being instituted on such a report, an accused will be deprived of a right to know what the evidence of the prosecution witnesses on oath will be before framing of the charge and also to cross-examine them at that stage. Attributing such a meaning to an expression in absence of a clear definition in the Code and thereby causing prejudice to an accused in a criminal trial should be always avoided. We are, therefore, clearly of the opinion that the Excise Officer's report even though he may be invested with the powers of a police officer for the purposes of investigation and even though he may have actually investigated the case under Chapter XIV of the Code of Criminal Procedure, cannot be equated with a police report. In order to have the status of a police report, as contemplated under Section 251-A of the Criminal Procedure Code, it must not only be made on the conclusion of the investigation under Chapter XIV of the Code of Criminal Procedure but also the investigation concerned must be conducted by a Police Officer and not an Excise Officer exercising the powers of a Police officer. The above conclusion will not be disturbed if cognizance is taken of such a report either under Section 190(1)(a) or under Section 190(1)(b) of the Criminal Procedure Code. Even assuming such a report to be a report of a police officer for the purpose of taking cognizance under Section 190(1)(b), the legal position is not at all affected if such a report is treated as a complaint and taken cognizance of as such under Section 190(1)(a) of the Criminal Procedure Code. Even if cognizance is taken under the latter section, there is no difficulty as under Section 200 (aa) the Court is not required to examine the Excise Officer when the complaint is by a public servant. Even treating it as a complaint, there may not be any necessity for issue of process by the Magistrate under Section 204, Criminal Procedure Code as the Excise Officer is empowered to arrest a person (Sections 20, 21 of the Assam Act) and he can also forward such a person under Section 167 or under Section 170 of the Code of Criminal Procedure exercising some of the powers of investigation under Chapter XIV. If the expression 'police report' is interpreted in this manner, it will be in accord with the popular sense of the term, will not result in prejudice to the accused unnecessarily and will also not affect the jurisdiction of the Magistrate in taking cognizance of the offence.
10. From the above discussion and for the reasons indicated, the Magistrate has committed no irregularity in proceeding with the trial of the accused j under Section 252 of the Code of Criminal Procedure and succeeding sections. The accused having pleaded guilty to the charge, which was framed on the evidence of a prosecution witness examined in his presence, there was no illegality nor any irregularity in the trial and the conviction based on the plea of guilty is perfectly valid in law.
11. Our attention was drawn on behalf of the accused to a Single Bench decision of this Court in Criminal Revn. No. 108 of 1963 D/-17.1.1964 (Assam), wherein a contrary view was taken relying on Section 26 of the Assam Act. For the detailed reasons appearing in the foregoing discussion, with respect, we are unable to agree with the aforesaid decision of his Lordship.
12. At the end, we may note that the view we have taken in this case of the procedure of trial to be adopted in an offence under the Assam Act, we understand is also in accord with a consistent practice which has been followed by the Excise Officers in bringing the offenders to book under this Act. It was also the earlier practice under the Opium Act, of course prior to the amendment of the Code of Criminal Procedure in 1955 when the dichotomy of the procedure envisaged under Section 251-A of the Code of Criminal Procedure was absent. We may also note that the Madhya Pradesh High Court and the Calcutta High Court were considering a case reverse of. the kind involved in this petition. There the procedure followed by the Magistrate was under Section 251A and the grievance was that the procedure under Section 252 and succeeding sections was applicable, a view which found favour with the learned Judges of, those Courts. We may also observe that their Lordships of the Supreme Court in Criminal Appeal No. 201 of 1963, Amal Shah v. State of Madhya Pradesh dated 11th December, 1964 (SC), noticed the decisions of the Calcutta and the Madhya Pradesh High Courts, mentioned earlier, but left the matter open as the report in the case before their Lordships was one which was actually submitted by a police officer although relating to an Excise offence.
13. In the result, the conviction and sentence of the petitioner are upheld and the petition is dismissed. The accused-petitioner shall surrender to serve out the sentence.
We would like to place on record our appreciation of the valuable assistance rendered by Mr. J.P. Bhattacharjee, the learned Counsel appearing as amicus curiae at the request of the Court.