JUDGMENT : K.P. Mohapatra, J. - This appeal by the Government is directed against the judgment" and order of the learned Sessions Judge, Puri, acquitting the Respondent of the charge u/s 47(a) of the Bihar and Orissa Excise Act (hereinafter referred to as, the 'Act'). 2. Facts in brief are that the Appellant was the disciple (Chela) of the Mahant of Samadhi Math, Puri. On 15-6-1978 at about 10 a.m. search of the premises of the Math was conducted by the Sub-Inspector of Excise (P.W. 8) in the presence of other excise and police officers, such as, P.Ws. 5, 6 and 10. In one of the rooms of the Math which was under lock and key 83 K.Gs. of non-duty paid bhang kept in five bags were recovered and seized in the presence of witnesses. Thereafter prosecution report was submitted against the Respondent and three others out of whom the Mahant of the Math was one. But he was acquitted by the learned Judicial Magistrate. The rest three including the Respondent were convicted u/s 47(a) of the Act and were sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 2000/-, in default to undergo further simple imprisonment for two months each. 3. The plea of the Respondent during the trial was denial of the charge brought against him. 4. There were in all ten prosecution witnesses out of whom, as already referred to above P.Ws. 5, 6, 8 and 10 were officers of the excise and the police departments. Out of the rest independent witnesses, P.Ws. 1, 2 and 7 did not support the prosecution. The evidence of the rest of the witnesses was found to be discrepant and unreliable. On a thorough scrutiny of their version the learned Sessions Judge recorded the following finding: Thus the evidence is highly discrepant and confusing regarding the custody of the key which is really the key to the case inasmuch as irrespective of whether the room belonged to Samadhi Math or Jhadu Math, the custody of the key should clinch possession of the room as well as possession of the contraband articles. In view of the evidence as noticed above on that vital aspect, it is in the judgment of acquittal would seem unwarranted. 5. There is another legal aspect which needs clarification. In view of the evidence as noticed above on that vital aspect, it is in the judgment of acquittal would seem unwarranted. 5. There is another legal aspect which needs clarification. On this legal aspect the learned Sessions Judge held as follows: The trial suffers from a grave lacuna. There is nothing on record to show that after appearance of all accused persons the learned Magistrate at any time explained to them the substance of the accusation as required by Section 251 Code of Criminal Procedure This contravention vitiated the trial beyond cure. There was considerable argument on this aspect and so the point that falls for consideration is whether the irregularity committed by the learned, Judicial Magistrate by not explaining the substance of the accusation to the accused as required by Section 251 of the Code of Criminal Procedure ('Code' for short) is incurable." 6. Section 251 of the Code envisages that when in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. This Section corresponds to Section 242 of the old Code of Criminal Procedure (referred to as the 'old Code'). The learned Sessions Judge found that there was no compliance of Section 251 of the Code inasmuch as the particulars of the substance of accusation were not explained to the Respondent by the learned Judicial Magistrate at the initial stage. Section 464 of the Code which corresponds to Section 535 of the old Code deals wit the effect of omission to frame, or absence of, or error, in charge. According to its provisions, no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, including any misjoinder of charges" unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Section 465 of the Code which corresponds to Section 537 of the old Code deals with curability or incurability of finding, sentence or order on account of error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. The learned Sessions Judge did hot notice the provisions of Sections 464 and 465 of the Code in order to examine if non-explanation of the substance of accusation to the Respondent occasioned failure of justice. He presumed that violation of Section 251 of the Code was incurable In this connection it is necessary to notice some decisions. In Bidyadhar Tunga Samantra Vs. Daitari Rana and Others a large number of decisions were examined by this Court and it was held that an omission to comply with the provisions of Section 242 would be a mere irregularity which, in the absence of prejudice, would be cured by Section 537 of the old Code. In Manbodh Biswal and Others Vs. Samaru Pradhan the earlier decision of this Court (supra) was followed and it was held that non compliance with the provisions of Section 251 is curable in the absence of proof of prejudice. In that particular case it was found that the prosecution witnesses were cross-examined at length and the accused persons were fully aware of the accusations against them and so the revisional Court, namely, the Additional Sessions Judge, Sambalpur, committed an error by setting aside the order of conviction on the ground of non-compliance of Section 251 of the Code without examining whether prejudice had been caused to the accused persons. In 1963 S.C.D. 815, Chittaranjan Das v. State of West Bengal, it was held that requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. In 1963 S.C.D. 815, Chittaranjan Das v. State of West Bengal, it was held that requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. There the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory' provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by Sections 535 and 537 of the old Code. From the legal principles enunciated in these decisions which the Courts in Orissa are bound to follow it is apparent that non-compliance of Section 251 of the Code ipso facto will not be sufficient to reverse an order of conviction unless it is found by the Court that thereby the accused has been prejudiced and failure of justice has occasioned. The irregularity, if any, is curable under Sections 464 and 465 of the Code, provided the accused is not taken by surprise and he was not unaware of the prosecution case he was required to meet. The records of this case will show that the Respondent knew the accusation against him. He had engaged counsel who had cross-examined the prosecution witnesses searchingly and to some of them at length. Therefore, the Respondent was not at all prejudice and there was no failure of justice, even though there was violation of the provisions of Section 251 of the Code. So the, observation of the learned Sessions Judge quoted in para 5 above as one of the grounds of acquittal was legally unjustified. 7. In the ultimate analysis, however, the appeal does not succeed and is hereby dismissed. Appeal dismissed. Final Result : Dismissed