BIND BASNI PRASAD, J. - (1.) THE petitioner, Abdul Aziz, and one Asghar Ali were found in possession of one seer 4 chhataks and 1 seer 12 chhataks respectively of crude opium on 26th May 1948, at about 9 A. M. at the entrance of an opium smoking den. They were arrested on the spot and were prosecuted under Section 9, Opium Act. Learned Magistrate convicted them under Section 9, Opium Smoking Act, and sentenced them each to undergo rigorous imprisonment for three months. In appeal the learned Sessions Judge upheld the conviction and sentence. The conviction recorded by the Sessions Judge, however, is under Section 9, Opium Act. The trying Magistrate committed an error in recording the conviction under Section 9, Opium Smoking Act. Section 9 of that Act provides for presumption raised by presence of opium and of opium smoking apparatus. It does not provide for any offence. On the other hand, Section 9, Opium Act makes the illegal possession of opium an offence. Learned Sessions Judge was correct in applying the law.
(2.) ASGHAR Ali did not go up in appeal before the learned Sessions Judge nor has he filed any revision in this Court. He must have served out his sentence by now. The only point which has been argued on behalf of Abdul Aziz is that his trial along with Asghar Ali was illegal.
(3.) SECTION 239, Criminal Procedure Code, provides as follows : [After quoting the section, His Lordship proceeded :] It is clear, therefore, that the applicant and Asghar Ali could be tried jointly if the offence with which they were charged was committed by them "in the course of the same transaction." It is true that these two persons were found selling crude opium at the same place and at the same time, but that does not necessarily mean that they were parties to the same transaction. The word 'transaction' used in the Code of Criminal Procedure is not defined. The expression "the same transaction" suggests not necessarily proximity in time so much as continuity of action and purpose. The test in such cases is that the acts done may be so related to each other in point of purpose or as cause and effect or as principal and subsidiary acts as to constitute one continuous action. There is no evidence on the record to show that there was any such relationship between the acts of the applicant and Asghar Ali. If two persons go to a market place quite independently to sell contraband opium and both of them are caught simultaneously it does not follow that there was any continuity of action or purpose between the two. Opium den is a place where there is a likelihood for the sale of contraband opium and persons seeking to make profit by the sale of such opium are likely to resort to such a place. The two accused belong to different places. One accused belongs to the village of Hajipur and the other to the town of Firozabad. There being no proof of the two accused committing the offence in the course of the same transaction the trial was in contravention of the provisions of Section 239, Criminal Procedure Code The next question is as to what is the effect of the aforesaid contravention. Learned counsel has referred to the Privy Council case of Subrahmania Ayyar v. King -Emperor, 25 Mad 61 : (28 IA 257 PC). It was held in that case that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537 of the Code. Such a phrase as irregularity is not appropriate to the illegality of trying the accused persons for more different offences at the same time.;