P L D 1963 (W (PLP)

Zahoorul Haq for Respondent. Date of hearing : 6th Feburary 1963. INAMULLAH, J.‑This is an application in revision by one Abdul Malik who has been convicted by the Additional City Magistate under section 9‑A of the Opium Act and sentenced to one year's R. I. and to pay a fine of Rs. 500 or in default to undergo 3 years' R. I. The conviction and the sentence was maintained on appeal by the learned Additional Sessions Judge, Karachi.

2. The applicant was apprehended at about 5‑30 p.m. on 21st February 1962, by A. S.

1. Riyasat Ali. He was found in possession of 5 seers of contraband opium. The applicant denied that he had 5 seer' of opium on his person. The applicant's plea was not accepted by the learned Magistrate and as already mentioned he was convicted and sentenced.

3. The only point that has been urged by Mr. S. S. Shaikh the learned Advocate for the applicant, is that the applicant having been challaned by the police officer the trial was vitiated. He relied in support of his contention on a Single Bench ruling of this Court in the case of The State v. Kadir Shah and another (P L D 1962 Kar. 460). It was held in that case that a police offcer exercising powers under section 6 of the Abkari Act may exercise powers under sections 36, 37 and 41 of the Act, but he cannot challan an accused person. It was held that the police officer has to follow the provisions of section 41‑A of the Bombay Abkari Act, 1878. This matter bad come before me while sitting singly. As I had some difficulty in accepting the proposition laid down by a Single Judge of this Court in the case of Kadir Shah and another referred the case for decision to a Division Bench. The matter has now been heard by Khamisani J. and myself.

4. We have come to the conclusion, after considering the provisions of the Bombay Abkari Act, 1878 that the conviction would not be bad in law on the ground that the challan was submitted by a police officer. In this connection it would be useful to reproduce section 6 of the Abkari Act. It reads as under:‑

6. To aid the Collectors in carrying out the provisions of this Act, the Provincial Government may appoint such sub ordinate officers, with such designations, and assign to them respectively such powers and duties under this Act, as it deems fit. To Provincial Government, or, subject to such orders as aforesaid, the Commissioners may invest any servant of the Crown in any department either personally or in right of his office, or any other person with such powers, and impose upon him such duties, under this Act as they deem fit, and any such officer shall thereupon exercise the said powers and discharge the said duties in addition to the powers and duties incident to his principal office Provided that powers under sections 36 and 40, clause (b), shall in no case be conferred on any officer of any ‑department who is not superior in rank to a peon, or constable, and that any assignment of, or investment with, powers or duties made under this section may at any time be cancelled or varied by the authority which made it." By Notification dated the 5th January 1922, the Government of Bombay under the above provision of law invested all officers of and above the rank of Head Constables with powers under sections 36 and 37 of the Bombay Abkari Act V of 1878. (Bombay Government Gazette Part I, 1922, pages 26 and 27). Section 36 o f the Act confers powers on Abkari Officers to act on information that liquor etc. is unlawfully manufactured. Section 37 of the Act gives power to certain persons to cease liquor etc. and to detain, search and arrest persons whom he has reason to believe to be guilty of any offence under the Act. The Bombay Government by Notification dated the 7th February 1927, extended the power that it had conferred on a police officer of and above the rank of Head Constable. It gave them further power to investigate all offences punishable under the Act. The learned Advocate relied on section 41‑A of the Abkari Act in support of his contention that a police officer had no power to challan the applicant. Section 41‑A reads as under .‑ "Every person arrested and thing seized under section 36, 37 or 41 shall, unless the arrest or seizure has been made by an Abkari Officer exercising powers under section 41, be forwarded without delay to the nearest Abkari Officer exercis ing such powers, or, if there be no such officer within reasonable distance, to the officer‑in‑charge of the nearest police station." The contention of the learned Advocate was that as the person had to be sent to an Abkari Officer immediately after arrest it followed that the Abkari Officer alone had the power to~ challan the person arrested. There is no force in this contention. `Abkari Offcer' is defined in section 3 (2) of the Act. It means a Commissioner, Collector or any Offcer either lawfully appointed or invested with powers under section

6. The Sub‑Inspector has also been invested with powers under section 6 of the Act. He is therefore an Abkari Offcer within the meaning of section 41‑A. The challan submitted by a Sub‑Inspector would therefore not be illegal, as he is also an Abkari Offcer within the meaning of section 41‑A of the Act.

5. Even if it was held that the police officer has no power, though he had power to investigate the case, it cannot be held b that the challan was illegal so as to vitiate the trial. We find, some support from the observation made by their Lordships of the Federal Court in the case of Crown v. Meharally (P L D 1956 F C 106). Their Lordships while considering the question whether an investigation carried on by someone other than the person authorised to carry on would vitiate the trial. Their Lord ships observed that it was by no means clear that even if it could be established that the investigation by the Sind Anti- Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial. It has not been disputed before us that the Magistrate had jurisdiction to try the case. The mere fact that the challan had been submitted by a person who was not authorised to submit would not deprive the Magistrate of his power to try the case if he had otherwise jurisdiction. We however find that. the contention of the learned Advocate would not apply to the circumstances of the present case. The present case relates to an offence under the Opium Act and, not under the Abkari Act. The provisions of section 41 for investigation or 41‑A of the Abkari Act would apply only to an offence punishable under the Abkari Act. The applicant had been convicted under section 9‑A of the Opium Act. As we had heard the learned Advocate for the applicant on the question that he had raised we thought it proper to express our views on the point raised.

6. The learned Advocate for the applicant contended that the sentence is too severe. The applicant has been awarded the maximum sentence under section 9‑A of the Opium Act. Considering the fact that this was the first offence of th applicant and there are no special grounds for awarding the maximum sentence under the Opium Act, we would reduce it to six months' R. I. and to a fine of Rs. 200 or in default to undergo one month's R. I. with this modification the application is dismissed. K.B.A. Sentence reduced.