Judgment:
S.K. Mohanty, J.
1. A question of considerable general importance namely : Does the failure of the Magistrate to explain to the accused the particulars of the offence as required by Section 251 of the Code of Criminal Procedure vitiate the trial and the consequent conviction is one of the questions that has arisen in these revisions for an answer. The other question is if conviction can be founded on admission of guilt of the accused despite the fact that the prosecution report does not make out an offence Under Section 47 (f) of the Bihar and Orissa Excise Act (hereinafter referred to as 'the Act').
2. In course of a raid by the striking Force of the Excise staff, certain quantities of fermented Mahua wash was recovered from the houses of the petitioners. They also recovered some distilling apparatus from the houses of the petittoners in Criminal Revision Nos. 181 and 186 of 1967. They faced the trial for commission of offence Under Section 47(f) of the Act. On 28-9-1984, they were produced before the Judicial Magistrate, First Class, Kodala who after recording the statements of the petitioners convicted them Under Section 47(f) and sentenced each of them to undergo rigorous imprisonment for six months and to pay fine of Rs. 10 /-, in default to undergo rigorous imprisonment for fifteen days. The judgment of the learned Magistrate was confirmed by the learned Sessions Judge, Ganjam.
3. The two questions, referred to above, have been raised by the counsel for the petitioners. In order to answer the questions raised, it would be worthwhile to state that Section 47(f) prohibits a person from possessing any materials, stiff, utensils, implement, instrument or apparatus whatsoever for the purpose of manufacturing any intoxicating drug or liquor other than Tari. Section 13 of the Act prohibits possession of the above articles except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Collector, In other words, without a licence from the Collector, no person can possess the above articles for the purpose of manufacturing any liquor other than Tari. Mere possession of any of the above articles is not enough and to constitute an offence, the person possessing must be shown to have so possessed for the purpose of manufacturing liquor, other than Tari.
4. The counsel has argued that the prosecution report disclosed that the earthen pots seized contained Mahua wash. But the report does not allege that the petitioners were in possession of Mahua wash for the purpose of manufacturing liquor. Hence, there was no allegation that the petitioners had committed an act which constituted an offence Under Section 47 (f) of the Act. Learned Additional Government Advocate has sought to repel the aforesaid submission of the counsel for the petitioners referring to Section 48 which permits drawing up presumption, unless contrary is proved, that an accused has committed an offence punishable Under Section 47(f) in respect of materials which have undergone any process towards manufacturing of an intoxicant (which means liquor), unless he accounts satisfactorily for such possession. In my view, the section is not relevant for the purpose of examining if the prosecution report discloses commission of offence Under Section 47(f).. Since the prosecution report mentions in clear terms that the petitioners were in lawful possession of Mahua wash and were, therefore, liable Under Section 47(f), the same will clearly imply an allegation that they possessed the materials for the purpose of manufacturing liquor. The totality of the allegations should be looked into and understood against the background and I am therefore, not impressed with the argument of the counsel for the petitioners that the prosecution report does not make out an offence.
5. I now come to the other question which has been strenuously urged on behalf of the petitioners.
When the petitioners were produced before the Magistrate, he put each of them two questions and recorded the answers. Under the first question, each of the petitioners was asked if on the date alleged specific quantity of Mahua wash (In Cri. Rev. Nos. 181 and 186 of 1987 distilling apparatus were also seized) was recovered from his possession and what he had to say. Each of the petitioners his answered the question in the affirmative saying that the allegition was 'true The next question was if he pleaded guilty to which his answer was in the affirmative also whereafter the following order was passed in each of the cases :
'The accused is produced. Copy of P.R. is supplied to the accused. Particulars of the offence' is explained to the accused for which he pleads guilty and claims no trial. His statement is recorded separately on his own admission. I find him guilty and convict him there- under. I am not inclined to extend the benefit of P.O. Act-
I sentence him to R.I. for six months and to a fine of Rs. 100/- i.e. R.1. for 15 days more Under Section 47 (f) of B. &. O. Excise Act.'
Counsel for the petitioner has urged that the particulars of the offence having not been explained to the petitioners, their aforesaid answers in the affirmative admitting the allegation and the guilt were of no consequence, and the conviction is unsustainable.
In support of his contention, the learned counsel for the petitioners relied on the decision in the case of Provident Fund Inspector v. Mohammed 1980 Kerala Law Times 698, wherein it is laid down that Under Section 251 Cr.P.C, the ingredients of the offence stated in the charge or the complaint, as the case may be, must be read out and explained to the accused persons.
6. Reference may now be made to a few decisions of this Court having some bearing.
In the case of State v. Upendranath, 25 (1958) CLT 325, Narashimham CJ. has held that omission to comply with Section 242 (now Section 251), Cr P.C. at the commencement of the trial was only an irregularity but did not vitiate. the trial. In the case of Bidyadhar Tunga v. Daitari Rana, AIR 1989 Ori. 121, Narashimham CJ, held that omission to comply with the provisions of Section 242 Cr.P.C (old) would be a mere irregularity which in the absence of prejudice would be cured by Section 587 Cr.P.C In the case of Manbodh Biswal v. Sama Pradhan 50 (1980) CLT 142, R. N. Mishra, J. (as he then was) held that in the absence of prejudice, the petitioners are not entitled to contend that the trial was vitiated for non-compliance with Section 251 CrP.C. In all the above cases full-dress trial had been held and the question of compliance with Section 242 (now Section 251) Cr.P.C. was raised in the higher Courts after orders of conviction were recorded by the trial Court. In the case of State v. Upendranath it was held that the trial was not vitiated. In the. case of Bidyadhar, Tunga the case was remanded for re-examination on the question of prejudice. In the case of Manbodh Biswal there was cross-examination of prosecution witnesses at length and defence had also led evidence. In the circumstances, it was held that there was no prejudice to the accused.
7. There is still another decision G. K. Misra. J. (as he then was) in the case of K. N. Sarkar v. State; 1968 Cri. L J. 121. In this case Under Section 273 IPC when the accused was produced before the Magistrate, he was asked if he was selling Motor (peas) and mustard oil. To this the accused replied that he was guilty. Thereafter the Magistrate convicted the accused on his own plea and sentenced him to pay fine. It was held by G.K. Misra, J. (as he then was) that selling Motor and mustard oil was not an offence. The vital particulars constituting the offence were ommitted from the statement. Even if all the particulars put to the accused were accepted, no offence was made out and the accused could not be convicted Under Section 273 IPC, even if he pleaded guilty. The accused was not represented by a counsel and so on the very face of it, the omission to comply with Section 242, Cr P.C. (old) had occasioned failure of justice. Ultimately, the trial was held to have been vitiated and the conviction was set aside. This decision in my view applies on all fours to the facts of the case at hand.
8. The provisions contained in Secs. 251 and .252 Cr.P.C. are salutary and mandatory. In a summons case no charge is framed and the accused is made known the accusation against him only through statement of the particulars of the offence which a Magistrate is bound to make to the accused, so that the latter knows what charge he is to meet. In view of the mandatory character of the provisions, the particulars of the offence have to be stated to the accused and the record must show What were those particulars which were stated and the answers the accused gave in reply. In a prosecution report if under the heading 'nature of the case, the ingredients of such offence are mentioned, then the Magistrate shall state the same to the accused. If, however, ingredients of the offence for which the prosecution has been launched have not been mentioned the Magistrate has to mention the ingredients of the offence in his statement to the accused and there must be a record of the statement so made to the accused and the answers given by him.
9. In the case at hand the petitioners were asked if they were in possession of fermented Mahua wash and two of them were further asked if they were in possession of distilling apparatus. These allegations by them- selves do not constitute an offence. It is not disputed that fermented Mahua wash is an intermediate stage in manufacture of liquor. Under Section 47(f) of the . Act, such possession only for the purpose of manufacturing liquor other than Tari amounts to an offence. I he import of the prosecution reports in these cases was that since the accused possessed articles for the porpose of manufacturing liquor, he was liable Under Section 47 (f) of the Act. In face of such report it was incumbent on the learned Magistrate to specifically state to the accused when he was brought before him that he had in his possession the articles in question for the purpose of manufacturing liquor and if after such statement was made to him, he pleaded guilty, then only the learned Magistrate acquired authority under law to convict him for the offence Under Section 47(f) of the Act, Therefore, there can be no escape from the conclusion that in these cases the learned Magistrate has not compiled with the provisions of Section 251 Cr P.C. inasmuch as it has not been specifically put to the petitioners that they were in possession of the articles for the purpose of manufacturing liquor other than Tari. Thus the accused persons were not made known what charge they were to meet. The petitioners besides being rustic, were also not represented by lawyers.
10. It cannot, therefore, be cavilled that the petitioners were considerably prejudiced by the failure of the learned Magistrate to state the particulars of the offence alleged to have been committed by them. It is not worthwhile to speculate what possibly would have been their answer if all the particulars of the offence had been stated to them. I am, therefore, of the view that the failure has vitiated the trial and there has been consequential failure of justice. In this result, I accept the revision and set aside the order of conviction and the sentence imposed against' the petitioners. Fine, if paid, shall be refunded.