A.P. Bhattacharya, J. - (1.) This Rule was obtained by the petitioner who is prosecuted under Section 9(a) of the Opium Act before a Presidency Magistrate in Calcutta.
(2.) The relevant facts are that the petitioner was arrested on 13.11.72 on the allegation that certain quantity of opium was seized from his possession. He was produced before the Additional Chief Presidency Magistrate, Calcutta on 14.11.72 in respect of a charge under Section 9 of the Opium Act. The learned Additional Chief Presidency Magistrate passed the following order on 11.7.73. "Seen prosecution report against the accused for an offence under section 9(a) of the Opium Act. Accused on Court bail. To remain as before. To Shri A.K. Chatterjee, Presidency Magistrate for disposal." Thereafter the case was fixed for evidence by the Transferee Magistrate, A. Chatterjee. These orders are impugned in this Rule by raising two contentions. The first contention is that it was the duty of the Additional Chief Presidency Magistrate to take cognisance but the order quoted above does not show that he has applied his mind to the facts and had expressly taken cognisance of the offence on such application of mind. In the instant case, it is contended that cognisance has not been taken and as such transfer to the transferee Magistrate was not in accordance with law. Without taking cognisance the Additional Chief Presidency Magistrate cannot transfer the case to another Magistrate under Section 192 of the Code of Criminal Procedure. The case is under the Old Criminal Procedure Code. The order as quoted above does not really speak out whether the Magistrate was satisfied on the prosecution report that a case under Section 9(a) of the Opium Act had been made out and that he had taken cognisance of the offence. The record does not show that. It is always to be expected that the Magistrate should in his order indicate that cognisance had been taken rather expressly. In that view of the matter the transfer to the Presidency Magistrate without taking cognisance is bad in law.
(3.) Another point of some importance has arisen in this Rule as to what would be the procedure to be followed by the Magistrate in trying the case if cognisance is taken on the materials on record. The relevant provision which requires consideration in this connection is Section 20 which is the Bengal Amendment of the Opium Act. It requires an officer of the Excise, Police or Custom Department to submit a report setting forth the name of the accused person and the nature of the offence with which he is charged before a Magistrate having jurisdiction to try the case. Upon receipt of such report the Magistrate shall enquire into such offence and try the person accused thereof in like manner as if such report in writing made by a Police Officer under Section 190(1)(b) of the Criminal Procedure Code of 1398. The Supreme Court has expressed itself on the procedure to be adopted by the Magistrate in such cases in a case reported in AIR 1965 SC 1185 (Provin Chandra Mody v. State of Andhra Pradesh) . The Supreme Court has clearly expressed its opinion that the position was in such cases that such reports, if they are regarded as made under Section 190(1)(b), must attract the provision of Section 251A of the Code, because if the fiction is given full effect they cannot be regarded as falling within 'complaints' under Section 190(1)(a) or within Section 190(1)(c) of the Criminal Procedure Code. Section 251A is applicable to the trial of the case.;