NIRESWAR GOGOI Vs. STATE OF ASSAM
HIGH COURT OF GAUHATI
STATE OF ASSAM
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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.
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.
(3.) 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.;
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