1. This is a Government appeal against the acquittal of five men who were charged with offences under Sections 6 and 7, Opium Smoking Act. They were convicted by the Magistrate and sentenced to various fines; Badalwa and Chandrika Prasad were also sentenced to simple imprisonment for a period of one month. There was a previous conviction against Chandrika Prasad. They appealed to the Sessions Judge who held that the facts were as found by the Magistrate but allowed the appeal and acquitted the appellants because he was of the opinion that the trial was illegal. His reason for so thinking was that the Magistrate who tried these men and convicted them had previously issued a warrant of search under Section 9, Opium Smoking Act, and it was in consequence of that search that these men had been found in the house of one of them together with apparatus for the smoking of opium. The learned Judge has relied upon the case in Emperor v. Shyam Behari 1934 All 987. That was a case under the Gambling Act in which a learned Judge of this Court expressed the opinion that a Magistrate who had issued a warrant of search under the Act should not subsequently try the men who were arrested in consequence of that search. The facts of the case are not fully given in the judgment and it is possible that the learned Judge was expressing himself more widely than he intended; but if he meant to hold that it was always illegal for a Magistrate to try a case after he had issued a search warrant, we are respectfully unable to agree. Emperor v. Shyam Behari 1934 All 987 purported to follow an earlier case of the Lahore High Court, namely, Emperor v. Raja Ram 1924 73 IC 521. In that case no such general proposition was laid down. It was a case where a question arose whether a warrant issued under the Gambling Act was properly issued or not, and the learned Judge who decided the case came to the conclusion that the Magistrate who had issued the warrant should not have tried the accused because he was a possible witness owing to the fact that the question had arisen whether the warrant had been properly issued. We can understand that there may be cases of that kind where it is not advisable for a Magistrate to try a case, but it is quite a different thing to say that a Magistrate who issues a search warrant can in no case legally try people who are charged with offences as a result of the search made.
2. In another case of this Court, namely the case in Mohammad Ali Khan v. Emperor 1926 27 Cr LJ 783, a learned Judge of this Court held that the mere fact that a Magistrate had issued a search warrant under Section 5, Gambling Act, did not disqualify him from trying the case. One of us in a recent case, Cr. Ref. No. 177 of 1936, took the same view. It has been suggested to us that the learned Magistrate should not have tried this case under the Opium Smoking Act because he had taken cognizance of it under the provisions of Section 190(c), Criminal P.C. We find that there is no force in this suggestion. The Excise Inspector had made a complaint in writing and it was on that complaint that the Magistrate took cognizance of the case, and he obviously did so under the provisions of Section 190(a) Criminal P.C. We may remark that there may be cases under the Gambling Act where it is an important question whether the search warrant was properly issued because the issue of a search warrant under that Act gives rise to a presumption against the accused. There is nothing of this kind under the Opium Smoking Act. A presumption arises under Section 5 of the Act quite irrespective of the issue of a warrant of search under Section 9 of the Act, so that, when a man is being tried for an offence under the Act, the question whether a warrant of search was properly issued can never be relevant, and it follows that there is no reason why the Magistrate should ever be required to give evidence for the defence or for the prosecution. We are satisfied that the trial was quite legal and the learned Sessions Judge was wrong in acquitting the appellants on the technical ground which he raised.
3. We have already remarked that the Magistrate and the Sessions Judge were both of opinion on the facts that the appellants were guilty. However, as the Sessions Judge did not act in accordance with that view, we have allowed counsel to put the facts before us. We find that there is the evidence of the Excise Inspector, a Sub-Inspector of Police, a search witness and an approver that the five persons with whom we are concerned were in a room in Badalwa's house and that there were pipes and other implements for smoking opium in the room and also some opium in the form of chandu. One of the accused at the trial confessed that the offence had been committed by him and the others. We have no doubt that this evidence is true. There are some witnesses for the defence whose statements we have examined, but we think that they do not tell a probable story and we do not believe them. It has been argued that there is no evidence that the chandu or opium found was in fact what the Excise Inspector says that it was. It is alleged that the substance should have been submitted to the Chemical Examiner for report. We can see no force in this argument. The Excise Inspector must have plenty of experience and must know a substance of this kind when he sees it. The accused did not suggest that the substance was anything other than opium. Their defence was that it was not found at the place where the offence was alleged to have been committed. In our opinion all the appellants are guilty. We are inclined to set aside the order of the learned Sessions Judge and restore that of the Magistrate, but we think that it was unnecessary for the Magistrate to send Chandrika Prasad to prison. He was previously convicted as long ago as 1926 and we do not think that it is necessary that there should be any punishment other than fine.
4. We therefore allow this Government appeal, set aside the order of the Sessions Judge and restore the order of the Magistrate, with this modification that Chandrika Prasad is sentenced to a fine of Rs. 30 only instead of to a fine together with simple imprisonment for a period of one month. The opposite parties are allowed one month within which to pay the fines which have been imposed upon them. If the fines are not paid within that time they shall undergo imprisonment in default as the Magistrate has directed. Badalwa will serve out his substantive sentence.