JUDGMENT : Das, J. - This is an appeal by the State of Orissa against an order dated 29-6-1963 passed by Sri P.K. Jena, Magistrate, II Class, Nuapara, acquitting the Respondents of an offence u/s 47(a) of the Bihar & Orissa Excise Act. 2. The Respondent Phulchand Agarwalla and Kunjalal Agarwalla were duly appointed salesmen of a foreign liquor licensee M. K. Deo of Khariar Road. On 28-2-1962, P.W. 6, the sub-inspector of excise went to the shop of the licensee and asked Respondent Phulchand if they had brought any stock of foreign liquor to the shop. The Respondent denied saying that since January 1962 they had no such stock. P.W. 6 then went to the Khariar Railway Station to serve a notice on the Station Master not to give delivery of any consignment of foreign liquor without the presence of an excise official. There he learnt that Respondent Kunjalal Agarwalla (Respondent No. 2) had already taken delivery of some foreign liquor on 23-2-1962 which was received from chorws Company. P.W. 6 immediately returned to the aforesaid shop and asked Phulchand to produce the foreign liquor account books. In the said book, he found that on 23-2-1962 there was an entry showing receipt of some pints of brandy, whisky and rum and some sales had also been shown on subsequent dates, leaving some balance of each of the above items of liquor. When he asked Phulchand to produce the stock as it stood on that date, the latter denied any knowledge of the stock or sale. Subsequently, however, he disclosed that they had been kept in room No. 11 adjacent to room No. 8 which was the prescribed premises for foreign liquor shop. It was further disclosed by Respondent Phulchand that the rest of the stock had been taken away to Kantabanji by accused Kunjalal. Then P.W. 6 seized the available stock from room No. 11 under seizure list (ext. 1/b). Thereafter he proceeded to Kantabanji and on 1-3-1962 he searched the house of Kunjalal and recovered some pints of brandy, whisky under seizure list, (ext. 2). Then he submitted a prosecution report against both the Respondents for an offence u/s 47(a) of the Bihar & Orissa Excise Act as the accused persons were found in possession of liquor in excess of the permissible quantity, and the accused persons were summoned to stand their trial. 3. 2). Then he submitted a prosecution report against both the Respondents for an offence u/s 47(a) of the Bihar & Orissa Excise Act as the accused persons were found in possession of liquor in excess of the permissible quantity, and the accused persons were summoned to stand their trial. 3. Both the accused persons admitted the position of stock seized by P.W. 6 to be in their possession. The learned Magistrate, however, without examining the evidence recorded an order of acquittal on the following grounds: (i) That the prosecution has not been able to prove as to why the licensee has not been prosecuted in this case; (ii) Keeping of a foreign liquor at any place other than the prescribed place of storage being a breach of the conditions of licence, is compoundable by the Superintendent of Excise and it was better for the Excise Department to compound the case departmentally; find (iii) The contents of the seized bottles have not been tested and the packing and sealing of the bottles had not been proved. It is against the said order of acquittal the present appeal has been filed by the State. 4. The learned Magistrate in coming to the aforesaid conclusion, has not discussed the evidence at all much less the essential point whether the accused persons were found to be in illegal possession of the stock seized and whether such possession would amount to an offence u/s 47(a) of the Bihar & Orissa Excise Act. 5. The prosecution in support of its case has examined some witnesses including the excise sub-inspector, P.W. 6. The learned Magistrate rejected the prosecution case merely on the ground that it was open to the Department to compound the case with the licensee and because the licensee had not been prosecuted by the department. What exactly were the reasons that weighed with the Department not to prosecute the licensee or compound the case is not a matter for the Court. The learned Magistrate should have kept the provisions of Section 367, Code of Criminal Procedure in view, which requires that the judgment of a Court shall contain the point or points for determination, the decision thereon and the reasons for such decision. It has been held by their Lordships of the Supreme Court in the case of Aftab Ahmad Khan Vs. It has been held by their Lordships of the Supreme Court in the case of Aftab Ahmad Khan Vs. The State of Hyderabad that it is the obvious duty of the Court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witness should be believed. Nothing of that sort was done by the learned trying Magistrate in this case. In fact the evidence relevant for the disposal of the case has not been touched at all. Some evidence has been adduced by the prosecution regarding the alleged seizure of contraband liquor from the possession of the accused persons. Mr. Mohapatra learned Counsel for the State contended that the recovery of the articles having been admitted by the two accused, the Court should have proceeded to draw proceeding u/s 48 of the Bihar & Orissa Excise Act, a presumption of guilt against them, in the absence of satisfactory explanation as to how they came to possess the same. That presumption, undoubtedly, would apply when the prosecution establishes that the accused persons were in exclusive conscious possession of the articles said to have been found in their possession. This requires an appraisement of the evidence which unfortunately as stated before has not been done in this case. Therefore the only question is whether this Court would proceed to appraise the evidence and come to a finding of its own or should send the case back to the trial court to record his finding after considering the evidence adduced in the case. I shall deal with this. point a little later. 6. Mr. Ray, learned Counsel for the Respondents raised some preliminary objection regarding the jurisdiction of the Magistrate to proceed with the trial of accused Kunjalal. It may be recalled that P.W. 6, the sub-inspector of excise seized some of the contraband articles on 28-2-1962 from room No. 11 in the possession of accused Phulchand at Khariar Road under seizure list, ext. 2. Subsequently he also made a search of the house of accused Kunjalal at Kantabanji and seized some articles under seizure list, ext. 1 on 1-3-1962. 2. Subsequently he also made a search of the house of accused Kunjalal at Kantabanji and seized some articles under seizure list, ext. 1 on 1-3-1962. In the eye of law each act of possession is a distinct offence by itself and the particular accused who was found to be in possession of the contraband article at any of the places will be separately tried for an offence u/s 47(a). Khariar Road is within the District of Kalahandi and within the territorial jurisdiction of the Magistrate of Nuapada, the trying Magistrate in the case. Kantabanji, where some Hquor was found in the possession of accused Kunjalal is within the district of Bolangir and not within the jurisdiction of the Magistrate at Nuapada. Section 177, Code of Criminal Procedure provides that every offence shall ordinarily be inquired into and tried by a Court within the local linnets of whose jurisdiction it was committed. Thus for an offence committed at Kantabanji by Kunjalal he cannot be tried by the Magistrate at Nnapada. Sections 178 to 185, Code of Criminal Procedure deal with the venue of trial and the circumstances in which an accused may be tried at a place other than the place of the commission of the offences. But where a particular act is a complete offence by itself, the offence is to be enquired into and trial only by the Court within whose jurisdiction the act was committed. Nothing has been shown in this case to attract the provisions of the other sections enumerated above so as to change the venue of the trial. At least on the evidence adduced by the prosecution it has not been made clear as to why the accused Kunjalal will be tried by the Magistrate at Nuapada within the district of Kalahandi. Though the prosecution wanted to suggest that the liquor found from the possession of both the accused were a part of the stock of the licensee Mahendra Kumar Deo at Khariar Road the prosecution did not choose to proceed against the licensee at all or against the accused persons under any other provisions of the Excise Act. 7. The accused persons have been prosecuted u/s 47(a) of the Bihar & Orissa Excise Act, the only case against them being that they were in possession of certain liquor in excess of the permissible limit of two bottles. 7. The accused persons have been prosecuted u/s 47(a) of the Bihar & Orissa Excise Act, the only case against them being that they were in possession of certain liquor in excess of the permissible limit of two bottles. In that view of the matter, the question of jurisdiction assumes some importance. There is no provision in the Bihar & Orissa Excise Act regarding the place of trial of offences under the said Act. Section 86 provides that Magistrates of 2nd class can try the offence and a 3rd class Magistrate may also try the offence if he is specially empowered for the purpose. Section 87 prescribes as to how proceedings for various offences are to be initiated. Mr. Mahapatra learned Counsel for the Appellant contended that the use of the word 'ordinarily' in Section 177 signifies that there is no absolute prohibition for a Court to try an offence even if committed outside its jurisdiction and in any case such an irregularity is curable u/s 531, Code of Criminal Procedure unless of course some prejudice is shown to have been caused. Section 5(2) of the Code of Criminal Procedure provides that all offences other than that in the Indian Penal Code shall also be tried according to provisions of the Code of Criminal Procedure subject to the provisions made in any other enactment regarding the procedure to be followed in such cases. In the case reported in Narumal Vs. State of Bombay their Lordships said that the word 'ordinarily' in Section 177, Code of Criminal Procedure only means "except where provided otherwise in the Code". The State Legislature is competent to provide for the trial of offences created by its statutes otherwise than is prescribed by Section 177, but it must clearly appear from the relevant provision of the special statute that a departure from the general principle prescribed by Section 177 is intended. 8. In a case reported in Banka Behari Singh Vs. The State Legislature is competent to provide for the trial of offences created by its statutes otherwise than is prescribed by Section 177, but it must clearly appear from the relevant provision of the special statute that a departure from the general principle prescribed by Section 177 is intended. 8. In a case reported in Banka Behari Singh Vs. O.M. Thomas and Others it was held that if as soon as the act is committed, the offence is completed at the place where the act is committed the Magistrate of that place only has the jurisdiction to try the case and merely because some offence is repeated at another place the latter offence cannot be said to be one which arose in consequence of the former act so as to attract the provisions of Section 179. In view of this position, the Magistrate of Nuapada clearly had no jurisdiction to try the accused Kunjalal. Mr. Mahapatra, learned Counsel for the Appellant, contended that merely because the trial took place before a Court which had no jurisdiction to try the offender is by itself not enough to affect the validity of the trial and the irregularity if any is curable u/s 531, Code of Criminal Procedure unless some prejudice is shown to have been caused to the accused. The question of prejudice to the accused is a question which depends on the facts of each case and it is always difficult to lay down a test for determining such prejudice. The prosecution, however, cannot choose for itself a forum of trial by ignoring the clear provisions of Section 177, Code of Criminal Procedure and then point out Section 531, Code of Criminal Procedure and call upon the accused to make out a case of prejudice. Mr. Ray however, contended that under the circumstances of the case prejudice may be inferred. Moseb Kaka Chowdhry alias Moseb Chowdhry and Another Vs. The State of West Bengal. That certain prejudice was likely to have been caused is inevitable from the evidence and circumstances of this case. I find there are certain discrepancies in the evidence of the prosecution as to where exactly accused Kunjalal is alleged to have committed the offence. Moseb Kaka Chowdhry alias Moseb Chowdhry and Another Vs. The State of West Bengal. That certain prejudice was likely to have been caused is inevitable from the evidence and circumstances of this case. I find there are certain discrepancies in the evidence of the prosecution as to where exactly accused Kunjalal is alleged to have committed the offence. Though it is the case of the prosecution that it was from the possession of Phulchand that the contraband liquor was found at Khariar Road, some witnesses such as P.W. 5 have come forward to say that he had let out the house (room No. 11) at Khariar Road to accused Kunjalal. The trying Magistrate also has not put the relevant questions very clearly to each of these accused persons and the evidence also is not very clear whether the recovery at Khariar Road was from the possession of Phulchand only or from the possession of both the accused Phulchand and Kunjalal. Thus, it cannot be doubted that there was a failure of justice occasioned in this case so far as accused Kunjalal is concerned and the provisions of Section 531, Code of Criminal Procedure cannot cure the same. 9. We have already seen that the learned Magistrate did not appraise the evidence in respect of the case against both the accused persons including Phulchand who was undoubtedly within the jurisdiction of the Magistrate for trial of an offence u/s 47(a). It has also been noticed that u/s 177, Code of Criminal Procedure, the Magistrate had no local jurisdiction to try Kunjalal and his trial also has occasioned a failure of justice. For the aforesaid reasons the order of acquittal passed by the Magistrate must be set aside. 10. The next question is whether this Court can still examine the evidence and come to its own decision or send back the case for retrial even the case of Phulchand. In this connection guidance is available from a case reported in K. Chinnaswamy Reddy v. State of Andhra Pradesh 1962 S.C.D. 1004. It was held by their Lordships in that case that where material evidence has been overlooked by the trial or appellate Court, even in its revisional jurisdiction, the High Court may order an appellate Court to rehear the appeal or direct a retrial by the trial Court. It was held by their Lordships in that case that where material evidence has been overlooked by the trial or appellate Court, even in its revisional jurisdiction, the High Court may order an appellate Court to rehear the appeal or direct a retrial by the trial Court. I have already examined the case at some length and I am of the view that the case should go back for a retrial. The order of the Magistrate acquitting the accused is accordingly set aside. The learned Magistrate may now proceed with the case o far as the accused Phulchand is concerned and dispose it of according to law. If the same Magistrate is not available, the District Magistrate, Kalahandi may transfer the case to the Court of some other Magistrate competent to try the case. As regards accused Kunjalal the prosecution may proceed against him in the Court of competent jurisdiction in the District of Bolangir unless it makes out a case that the Magistrate at Nuapada is also competent to try the case by reason of the application of some provision of the Code of Criminal Procedure. The appeal is accordingly allowed and retrial ordered. Final Result : Allowed