( 1 ) THIS matter has come up for our opinion on the following two points which have been specifically formulated by Sen J. :

" (1) Whether in view of Section 20 (g) Opium Act, a complaint filed by excise Officer under the Opium Act can be deemed a case instituted as a case on police report as contemplated under Section 251 A, Criminal procedure Code? (2) If it cannot be so deemed, whether following the wrong procedure would vitiate the trial?"

( 2 ) THE circumstances, giving rise to the aforesaid two questions, briefly stated, are these. On the report of a certain Excise Officer one Sardarkhan was convicted under Section 9 (a) and 9 (b) of the Opium Act. The Magistrate held the trial in the manner laid down under Section 251 A, Criminal Procedure Code. The accused unsuccessfully challenged his conviction before the Additional Sessions Judge, mandsaur. This Court was, therefore, moved by a revision petition challenging the correctness of the conviction and it appears that it was during the course of arguments before Sen J. that it was urged that the entire trial was vitiated inasmuch as the trying Magistrate instead of following the procedure for trial laid down in Section 252, Criminal Procedure Code, followed the procedure laid down in Section 25i-A of the Code. It was contended that the report of the Excise Officer to the Magistrate not being such a 'police report' as is contemplated by Section 251-A, Criminal Procedure code, the case against the accused could not be said to have been instituted on a 'police report' to enable the trying Magistrate to follow the procedure for trial laid down in Section 251-A of the Code. The trial, it was urged, should have been in the manner as laid clown under Section 252 of the Code and the failure to so hold the trial has materially prejudiced the accused rendering his conviction liable to be set aside.

( 3 ) THE contrary view repelling the contention as raised by the petitioner expressed by a Single Judge of this Court in two cases, one of Abdul Rehman v. State, 1958 mp LJ 196 : (AIR 1958 Madh Pra 285) and the other of Laxminarayan v. State, (Cr. Revn. No. 220 of 1960) : (AIR 1961 Madh Pra 13) did not find favour with Sen j. He felt inclined to agree with the views supporting the petitioner's contention expressed in the matter by two Division Benches of Calcutta and Madras High courts, one reported in Premchand Khetry v. The State, AIR 1958 Cal 213 and the other reported in In re, Pavadai Goundan, AIR 1957 Mad 292 : 1957-1 Mad LJ 41. Accordingly this Bench was constituted to resolve the conflict that seems to have been arisen in this Court.

( 4 ) THE learned Single Judges of this Court have taken the view that a report submitted by an Excise Officer to a Magistrate complaining of a commission of an offence under the Opium Act was expressly made a report of a police officer within the meaning of Clause (b) of Sub-section (i) of Section 190, Criminal Procedure code, and therefore liable to be taken cognizance of as-such by the Magistrate. Hence it was held that the Magistrate shall have to follow the procedure provided in Section 251-A of the Code for a case instituted on a police report, as laid down in Section 251 of the Code. The Excise Officers it was not disputed, have been constituted as Station Officers of a Police Station.

( 5 ) THE reasoning of the Calcutta High Court in the case of AIR 1958 Cal 213 with which Sen, J. felt inclined to agree may be briefly stated as under : -" the expression 'police report', as used in the Code for reports of offences made by the Police, carries a special meaning. As used in old section 190 (i) (b), the expression was interpreted by several High courts as meaning reports made under Section 173, that is to say, reports of cognizable offences or non-cognizable offences with regard to which there had been a direction by a Magistrate to investigate, made after an investigation under Chapter XIV, The result of that interpretation was that cognizance of a

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