- (1.) THIS is a criminal reference made by the learned Sessions Judge, Rae Bareli, recommending that the conviction of the applicants Baijnath and Mohammad under Sections 12, 13 and 14 of the U. P. Opium Smoking Act (U. P. Act No. III of 1934) be set aside.
(2.) IT appears that on the 3-7-1954, at about 5 P. M. Sri Gupta, the second Officer of police station nasirabad, District Rae Bareli, was passing in front of the house of one Wahab, a gold, smith, in the town of Jais, He saw the two applicants smoking opium in a room of Wahab's house by the road side. He thereupon stopped three passers-by and in their presence recovered smoking pipes from the possession of both the applicants. He also recovered opium -weighing about half an anna from the possession of Mohammad. After making a memorandum of this recovery, he filed a case against the two applicants.
(3.) THE learned Sessions Judge came to the conclusion that in view of Section 19-A, U. P. Opium, smoking Act, as amended by U. P. Act 25 of 1953, Sri Gupta was not empowered to conduct this search and, therefore, this search was illegal. He also held that as there was no report of the collector or any other officer of the Excise Department in this case, the Magistrate could not take cognizance of the oilence in view of Section 25, U. P. Opium Smoking Act. Along with this reference an explanation has also been submitted by the Magistrate who convicted the applicants. The Magistrate justifies his order of conviction and refers to certain notifications issued by the State Government by which all police officers irrespective of their ranks were made Excise Officers under Section 10, Sub-section (2) (e) of the U. P. Excise Act. It is, therefore, contended by him that the second officer being an. Excise Officer is also empowered to conduct a search and to prosecute the offenders. He also relied upon Section 2, sub-section (7) of the U. P. Opium Smoking Act in which an officer of the Excise Department is defined. In this definition it is mentioned that an officer of the Excise Department includes an officer or person empowered under Section 10 (2), (e) of the U. P. Excise Act.;