# ASH IQ MIY AN AND ORS v. STA TE OF MAI>llY A PRADESH May 1. 1968

- **Citation:** [1969] 1 S.C.R. 188
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Bench:** V. Ramaswami, C. A. VAil>IALINGAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ash-iq-miy-an-and-ors-v-sta-te-of-mai-lly-a-pradesh-may-1-1968-4370
- **Pages:** 5

## Headnote

Opiton Act (1 of 1878), a.\· applicabl:: ro 1\fadhya Pradesh-Seizure
and Report by l'olicc Ofjic:er-Tria! lt1'der Cr. P. C. 11·httl1er s. 251A
or s. 252 c:r. P.C:. applicable.
On receiving
information, Lhat opium
\\'as being
smuggled
and
secretly kept in the house of the appellants. the Sllb-Inspcclor of Police
\\.i~ a police party raided their house. and recovered Jar~e quantity of
opium from the courtyard of the house.
The Sub-Inspector of Police
made the report and the trial followed.
The appellanl<' pica that they
\1.:cre living separately and that one A had thrown the bundle, \Vas rejected by the
court~
beJoy,·. and they
\\'Cre convicted under s. 1208
I.P.C. and s. 9(a) of the Opium Act.
Jn the appeal 10 this Court. the
appellants contended that the trial. which was held. under s. 251A of
the Code of Criminal Procedure. \\'JS vitiated, as it should have hcen
properly held only umkr s. 252 Cr. P.C.
HELD : There \vas no illegality in the trial.
In this case the investigation \\'3S done hy a police otlicer. the seizure
of the anicles and the report to the Magistrate. was made by the Police
Officer.
It \\'as on this repon of the police officer that the f\fagistrate
acted further. and the- trial also fol10V1·cd.
In respect of a trial conduct~
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ed by a Magistrat<.- on a report made br a police officer. under the Opium
E
Act, as applicable 10 the State of Madhya Pradesh. for an offence under
that Act. s. 251A Cr. P.C. is applicahlc. 1192 F-HJ
Anial'lhah v. Stafr of
Madhya Prad::slt,
unreported
decision.
in
Cr. A. No. 201/63. dt. 11-12-64. followed.
CRIMISAL APPELLATE JURISDICTION:
Criminal Appeal No.
128 of I 966.
F
Appeal by special leave from the judgment and order dated
December 23, I 965 of the Madhya Pradesh High Court (Indore
Bench) in Criminal Revision 1'o. 13 I of 1964.
C. L. Sareen and R. L. Kohli, for the appellanls.
l. N. Shroff, for the respondent.

## Text

ASH IQ MIY AN AND ORS.
V.
STA TE OF MAI>llY A PRADESH
May 1. 1968
[V. RAMASWAMI AND C. A. VAil>IALINGAM, JJ.j
Opiton Act (1 of 1878), a.\· applicabl:: ro 1\fadhya Pradesh-Seizure
and Report by l'olicc Ofjic:er-Tria! lt1'der Cr. P. C. 11·httl1er s. 251A
or s. 252 c:r. P.C:. applicable.
On receiving
information, Lhat opium
\\'as being
smuggled
and
secretly kept in the house of the appellants. the Sllb-Inspcclor of Police
\\.i~ a police party raided their house. and recovered Jar~e quantity of
opium from the courtyard of the house.
The Sub-Inspector of Police
made the report and the trial followed.
The appellanl<' pica that they
\1.:cre living separately and that one A had thrown the bundle, \Vas rejected by the
court~
beJoy,·. and they
\\'Cre convicted under s. 1208
I.P.C. and s. 9(a) of the Opium Act.
Jn the appeal 10 this Court. the
appellants contended that the trial. which was held. under s. 251A of
the Code of Criminal Procedure. \\'JS vitiated, as it should have hcen
properly held only umkr s. 252 Cr. P.C.
HELD : There \vas no illegality in the trial.
In this case the investigation \\'3S done hy a police otlicer. the seizure
of the anicles and the report to the Magistrate. was made by the Police
Officer.
It \\'as on this repon of the police officer that the f\fagistrate
acted further. and the- trial also fol10V1·cd.
In respect of a trial conduct~
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ed by a Magistrat<.- on a report made br a police officer. under the Opium
E
Act, as applicable 10 the State of Madhya Pradesh. for an offence under
that Act. s. 251A Cr. P.C. is applicahlc. 1192 F-HJ
Anial'lhah v. Stafr of
Madhya Prad::slt,
unreported
decision.
in
Cr. A. No. 201/63. dt. 11-12-64. followed.
CRIMISAL APPELLATE JURISDICTION:
Criminal Appeal No.
128 of I 966.
F
Appeal by special leave from the judgment and order dated
December 23, I 965 of the Madhya Pradesh High Court (Indore
Bench) in Criminal Revision 1'o. 13 I of 1964.
C. L. Sareen and R. L. Kohli, for the appellanls.
l. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
G
Vaidialingam. J. This is an appeal. hy special leave, in which
the appellants challenge the propriety and
correciness.
of 1he
order of the Madhya Pradesh High Court confinning 1heir conviction, under s. ! 20B, TPC. and s. 9 (a). of the Opium Act, 1878
H
(Act I of 1878) (hereinafter calic<l the Act).
Appcllanis 2 .and
3 are the sons of the first appellant, and the 4th appellant. since
deceased, was his nephew.
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ASH!Q MIYAN v. M.P. STATE (Vaidialingam, J.)
'189
On receiving information, that opium was being smuggled and
secretly kept, in the house of the appellants, the Sub Inspector
of Police, Station Malharganj, Indore, with a police party, raided
their house, on September 19, 1960, and recovered a fairly large
quantity of opium, of about 2 maunds, 14 seers and 14 chhatacks.
The appellants were arrested, and charge-sheeted,
for
having
committed offences, under s. 120B, IPC., ands. 9(a), of the Act.
They pleaded not guilty.
Their defence was that each of them
was living separately, and they were not also in the house, when
the opium was stated to have been recovered.
The deceased,
4th appellant, raised a plea that one Altaf had come, in the morning of September 19, 1960, at about 9 a.m., and told him that
the police were after him, and that he wanted to throw a bundle,
which was, in his possession, in the house of the appellants.
Accordingly, Altaf threw a bundle, in the court-yard of the house
of the appellants .
The Additional City Magistrate, Indore, accepted the case of
the prosecution, and rejected the plea of the appellants. The trial
Magistrate found that the opium was recovered, from the possession of the appellants, who had no permit or licence, for its
possession or transportation, and he also found that the appellants,
along with others, had conspired to possess the said opium.
On
these findings. each of the appellants,
was
convicted,
under
ss. 120B, IPC .. and s. 9 (a), of the Act, and sentenced to undergo
two years' rigorous imprisoument, in respect of each of the
offences, the sentences, to run concurrently.
The appellants challenged their conviction
and sentence,
before the First Additional Sessions Judge, Indore, in Criminal
Appeal No. 118 of 1963.
The learned Sessions Judge, agreeing
with the conclusions, arrived at by the trial Court, dismissed the
appeal.
The appellants, again, moved the High Court of Madhya
Pradesh, in Criminal Revision No. 131 of 1964, to set aside their
conviction; but the High Court also, by its order, dated December 23, 1965, which is under attack, dismissed the revision.
On behalf of the ·appellants, Mr. C. L. Sarin, learned counsel
raised three contentions : ( 1) that there is no evidence of any
conspiracy, to attracts. 120B, IPC; (2) neither the High Court,
nor the two Subordinate Conrts, have considered the vital question, viz., whether the evidence establishes that the four appellants were in conscious possession of the opium, recovered from
the house; and (3) the trial, which was held, under s. 251A, of
the Code of Criminal Procedure, was vitiated, as it should have
been properly held, only under s. 252, Cr.P.C.
So far as the first two contentions are concerned, in our opinion, it is really an attack, on the concurrent findings, recorded
190
SUPREME COURT REPORTS
[ 1969] I S.C.R.
by the Magistrate and, on appeal, by the Sessions Judae and
which have been accepted, 'by the High Court, in revisio;. ' The
Magistrate, as well as the learned Sessions Judge, have posed one
of the questions for consideration, as to whether the appeiiant>
can be considered to have been in c0nscious possession of the
~pmm, recovered from tbe house.
It is, in considering this question, that the plea of the appellants, that each of them was living
separately in the house and that they were not present, at the time
of the recovery, and that it was possible, for some outsider, to
have thrown '!he opium recovered, into the court-yard of the
house, have all been considered, in detail, and findings recorded,
against the appellants.
The chance of any outsider,
having
thrown this article in the court-yard of the appellants' house, has
been eliminated.
The court-yard has been found to be a place
where various domestic articles were kept, and has
also
been
found to be a place, in frequent use, by the appellants.
Their
presence, at the time of the recovery, has also been held to be
established.
In view of all these, and other circumstances,
to
which
it is
unnecessary for us to refer, the finding has been
recorded that the opium, found in the court-yard of the house of
the appellants, was in their conscious possession and that Uie
appellants, along with others, had also conspired together, to obtain, deal in, and possess opium.
The further finding is that tl!e
presence of such a large quantity of opium could not ·have been
possible, without each of them, taking the other, into confidence.
These findings have been accepted, by •the High Court, and we
are satisfied that there is no legal error, or infirmity, committed
by any of the Courts, in arriving at that conclusion.
Therefore.
the two contentions, noted above, will have to be ;-ejected.
That leaves us, for consideration, the third contention, noted
above, that the trial, in this case ought to have been held, under
s. 252, Cr.P.C., and it is vitiated, as it has been
held,
under
s. 251A.
Mr. Sarin. learned counsel for the appellants, urged
that the officers, who are to investigate offences, and grant bail.
to persons arrested under the Opium Act. as well as the procedure, for trial, in respect of offences, under the Act, and other
incidental matters, connected therewith, have been laid down in
sections 20 to 20-I, introduced in the
Act,
by
the
Opium
(Madhya Pradesh) Amendment Act,
1955
(M.P. Act XV of
1955). Counsel urged that the officer, empowered to inve~gate
offences under s. 20 be he an officer of the Departinent of Excise.
or a police officer. ~ust be considered to be an excise officer; and
though the report, made by such an officer,
is
treated,
under
s. 20G, of the Act, a' applied to Madhya Pradesh, as a report.
made by a police officer, under s. 190(1 )(b), Cr.P.C .. it cannot
be held to be a police report. within the meaning of s. 251A, ancl
hence. the trial should have been held. in this case. not under
s. 251-A, but under s. 252, Cr.P.C.
Counsel referred us to the
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ASHIQ MIYAN v. M.P. STATE (Vaidialingam, J.)
191
decision, of the Madhya Pradesh High Court in Sardar Khan
Multan Khan v. State('), in this connection.
Counsel further
stated that this question, regarding the illegality, of the trial held
under s. 25 lA, was raised, in the present proceedings, when the
appellants had filed in the High Court, a criminal revision, challenging their conviotion, by the two Subordinate Courts.
This
question, was referred, by a. learned Single Judge by his order
dated August 3, 1965, to a Full Bench, for consideration.
The
Full Bench, in its decision, reported as Ashiq Miyan v. State(")
has overruled the earlier decision, in Sardar Khan's case(').
The
learneLl Judges, of the Full Bench, have rejected the contention
of the appellants, that their trial was vitiated, by the fact th~t the
procedure, prescribed by s. 251A, Cr.P.C., has been adopted.
The Full Bench has further held thats. 251A, Cr.P.C., is attracted
to a case, instituted under the Opium Act, on a report made by
a police officer, and that it logically follows that the trial, of an
accused, under the Opium Act, instituted on a report, made by
an excise officer, would also be governed, by s. 25 lA.
According to the appellants, this decision of the Full Bench, is erroneous.
and counsel wants the earlier decision of the Madhya Pradesh
High Court, in Sardar Khan's case('), to be restored.
Mr. I. N. Shroff, learned counsel for 'the State pointed out
that the case against the appellants was investigatt:d, in accordance with the provisions, contained in the Opium Act and was
initiated, on a report, made by a police officer. These facts have
been noted, by the learned Judges of the Full Bench, and it is, on
that basis, >that ultimately, after a reference to the decision of this
Court, in Amalshah v. The State of Madhya Pradesh('), that the
Full Bench has held that the trial is not vitiated.
It is not really necessary, for us, to consider the larger question, as to whether, when an excise officer makes a report, under
s. 20-G, of the Act, whether the trial, following it, in such a case,
would be governed by s. 25 lA. In fact, the Full Bench has gone
further, and expressed an opinion, on this point also, that even
in such a case, the trial would be governed, by s. 251A,Cr.P.C.
We. express no opinion, on that aspect of the matter.
We will
confine our decision, to the present case, on the basis that the
crime was investigated, in accordance with the provisions, contained in the Opium Act and the case was initiated against the
cappe11ants, on a report, made by a police officer.
The first information report, Exhibit P-20, shows
that the
search of 'the appellants' house was conducted, by the Sub-Inspector of Police, Malharganj Police Station, and the recovery of
opium, as well as the arrest of the appellants, were made, by the
(l) A.LR. 1963 M.P. 337.
(2) A.I.R.1966 M.P. 1 (F.B.).
(3) Unreported decision, in Cr!. A. 201of1963, decided on 11-1' -1964.
192
Sl:PRO!E COCRT RF.PORTS
[1969) i S.CR.
said ofticer.
Investigation was also done, by him.
Ultimate!,·,
the report, which is St) led as a 'complainr, and dated October 23.
J 960, was mac.Jc and signed by Tehsildar Singh, Sub-Inspector of
Police, Malharganj Police Station, as the Investigating Oflicer.
It is on the basis of that report. that the Magistrate. in ·this case,
conducted the trial of the appellants.
We have already referred to the Full Bench decLsion, of the
\1adhya Pradesh High Court. wherein these facts
have
been
stated.
No doubt, counsel for the appellants has urged that. even
under those circumstances. a trial, for an offence under the Opium
Act, cannot be held. under s. 251-A.
We arc not ind1ned to
accept, this contention of the learned counsel.
More or Jess. a
similar question arose. before the Constitution Bench af this Court.
in Amalslzail's Case('). Similar contentions were also urged. and
reliance was placed, on s. 20-G. of the Act, as applied to Madhya
Pradesh.
This Court. after referring to the material provisions
of s. 20-G, by its judgmertt. dated December JI. 1964, declined
to express an opinion on 1he larger question, that the report. made
by an excise officer, cannot he held to be a police report. so as
to attract s. 251-A. of 1he Code of Criminal Procedure.
Jn that
decision. this Com:t actually found that the proceedings, against
the appellant before them, coJllmenced on the report, of a police
ofliccr, and not on the report. of an excise officer. and that the
complaint, lodged before the Magistrate. had been signed by the
police officer. who investigated the offence.
On these findings.
this Court held that. inasmuch as the proceedings commenced, on
a report made by a police oflicer. s. 25 J-A, Cr.P.C. in tenns.
would apply, and hence the trial held, under that section, in that
case, was perfectly legal.
Therefore. it will be seen. that in respect of a trial. conducted by a \fagistrate, on a report made by
a police oflicer, under the Opium Act. as applicable to the State
of Madhya Pradesh, for an offence under that Act. this Court held
that s. 251-A. Cr.P.C. applied.
Tn the case before us, on the facts, it is clear 1hat the investigation was clone by a police oflicer. the seiwre of 1he articles and
the arrest. of the accused. were effected, hv a police officer. and
the complaim or report, dated October 23. 1960. to the :v!a~is
trate, was made, by the Police Officer. It is. on this report of the
police officer. that the Magistrate acted further, and the trial also
followed.
Under those circumstances, it is clear that s. 251-J\.
Cr.P.C. directly applies, and it was. in accordance with the procedure. indicated in that section, that the
trial was
held.
Jr
follows. th·,1t there is no illegality. in the trial.
The result is that this appeal fails, and is dismissed.
Y.P.
Appeal dismis.•rd.
··--··-----
(!) L'nr..:r1Jrtcd decision in Crl. A. ::!01of1963 decided on I 1-12-19(4.
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