JUDGMENT

1. This is a Government appeal against the acquittal of five men who were charged with offences under Sections 6 and 7, Opium Smoking Act. They were convicted by the Magistrate and sentenced to various fines; Badalwa and Chandrika Prasad were also sentenced to simple imprisonment for a period of one month. There was a previous conviction against Chandrika Prasad. They appealed to the Sessions Judge who held that the facts were as found by the Magistrate but allowed the appeal and acquitted the appellants because he was of the opinion that the trial was illegal. His reason for so thinking was that the Magistrate who tried these men and convicted them had previously issued a warrant of search u/s 9, Opium Smoking Act, and it was in consequence of that search that these men had been found in the house of one of them together with apparatus for the smoking of opium. The learned Judge has relied upon the case in Emperor v. Shyam Behari 1934 All 987. That was a case under the Gambling Act in which a learned Judge of this Court expressed the opinion that a Magistrate who had issued a warrant of search under the Act should not subsequently try the men who were arrested in consequence of that search. The facts of the case are not fully given in the judgment and it is possible that the learned Judge was expressing himself more widely than he intended; but if he meant to hold that it was always illegal for a Magistrate to try a case after he had issued a search warrant, we are respectfully unable to agree. Emperor v. Shyam Behari 1934 All 987 purported to follow an earlier case of the Lahore High Court, namely, Emperor v. Raja Ram 1924 73 IC 521. In that case no such general proposition was laid down. It was a case where a question arose whether a warrant issued under the Gambling Act was properly issued or not, and the learned Judge who decided the case came to the conclusion that the Magistrate who had issued the warrant should not have tried the accused because he was a possible witness owing to the fact that the question had arisen whether the warrant had been properly issued. We can understand that there may be cases of that kind where it is not advisable for a Magistrate to try a case, but it is quite a different thing to say that a Magistrate who issues a search warrant can in no case legally try people who are charged with offences as a result of the search made.

2. In another case of this Court, namely the case in Mohammad Ali Khan v. Emperor 1926 Cri LJ 783, a learned Judge of this Court held that the mere fact that a Magistrate had issued a search warrant u/s 5, Gambling Act, did not disqualify him from trying the case. One of us in a recent case, Cr. Ref. No. 177 of 1936, took the same view. It has been suggested to us that the learned Magistrate should not have tried this case under the Opium Smoking Act because he had taken cognizance of it under the provisions of Section 190(c), Criminal P.C. We find that there is no force in this suggestion. The Excise Inspector had made a complaint in writing and it was on that complaint that the Magistrate took cognizance of the case, and he obviously did so under the provisions of Section 190 Criminal P.C. We may remark that there may be cases under the Gambling Act where it is an important question whether the search warrant was properly issued because the issue of a search warrant under that Act gives rise to a presumption against the accused. There is nothing of this kind under the Opium Smoking Act. A presumption arises u/s 5 of the Act quite irrespective of the issue of a warrant of search u/s 9 of the Act, so that, when a man is being tried for an offence under the Act, the question whether a warrant of search was properly issued can never be relevant, and it follows that there is no reason why the Magistrate should ever be required to give evidence for the defence or for the prosecution. We are satisfied that the trial was quite legal and the learned Sessions Judge was wr