Honble SINGH, J.– Heard learned counsel for the petitioner and the Public Prosecutor for the State. (2). This petition has been filed under Section 482 Cr.P.C. against the order of Shri C.L. Bajaj, Chief Judicial Magistrate, Chittorgarh dated 12-7-89 passed in Criminal Case No. 41/89 directing that cognizance be taken against the petitioners for the offence under Section 25 of the Narcotic Drugs and Psychotrophic Substances Act. (3). However, the learned counsel for the petitioner and the Public Prosecutor for the State perused the record. (4). It appears from the Recovery Memo dated 21-8-88, that on that day at Mangrole crossing Shri Satyavir Singh Inspector along with his party was checking the vehicles for detection of offences punishable under the N.D.P.S. Act. At about 4.00 p.m. truck no. DIG 1351 was seen coming from Jaipur and going towards Nimaobhera. The truck was stopped and inside the truck five persons namely Baldev Ram, Paramjeet Singh, Gopal, Jagbir Singh and Babu Bhai were found sitting. On enquiry Baldev told that truck was carrying 300 bags of cement which he was taking to Delhi and Jagbir Singh and Babu Bhai boarded the truck at Nimba- hera. The conduct of Shri Jagbir Singh and Babu Bhai appeared to be suspicious. Therefore, under the instructions of the Inspector, a Constable searched the truck and he found that Jagbir Singh was carrying a hand bag which contained a packet of ragzine. That packet was opened and inside the packet was found a plastic packet which contain opium. Similarly, Babu Bhai was also found carrying a bag inside the bag there was a ragzine packet which was opened and inside that packet opium was found. The weight of the opium recovered from Jagbir Singh was .600 kg and weight of opium found from Babu Bhai was .500 kg. Samples of 25 gms., each were taken from both and they were sealed then and there. The recovery memo does not indicate whether the provisions of Section 42 and Section 50 N.D. P.S. Act were complied with by the Inspector under whose directions the search was conducted. But that is not a relevant fact for the purpose of this petition. Samples of 25 gms., each were taken from both and they were sealed then and there. The recovery memo does not indicate whether the provisions of Section 42 and Section 50 N.D. P.S. Act were complied with by the Inspector under whose directions the search was conducted. But that is not a relevant fact for the purpose of this petition. At the time of recovery of the opium all the five persons were found sitting inside the truck and they were arrested but after completion of investigation the police submitted a report under Section 169 Cr.P.C. stating therein, that the Senior Authori ties of his department had directed that complaint be filed against Jagbir Singh and Babu Bhai and final report be submitted in respect of Baldev Ram, Paramjeet Singh and Gopal. The application was considered by the learned Chief Judicial Magistrate, Chittorgarh and vide order dated 12-7-89, he rejected the application filed under Section 169 Cr.P.C. and directed that cognizance of the offence be taken against Gopal and Paramjeet Singh under Section 25 of the N.D.P.S. Act, 1985. Baldev Ram had by that time died, therefore, no order was passed against him. (5). The learned counsel for the petitioner has submitted that in this case there is not even an iota of evidence to justify the commencement of any proceeding against the petitioners and the order dated 12-7-89 passed by the Chief Judicial Ma- gistrate, Chhitorgarh is not only in violation of the provisions of law it amounts to abuse the process of the Court. On the other hand the learned Public Prosecutor has supported the order passed by the learned Chief Judicial Magistrate, Chittorgarh on the ground that in this case the petitioners were arrested at the time of recovery after opium and seized the two persons who were carrying opium were travelling in the truck it should be inferred that the truck owner, driver and co-owner of the truck had knowledge that opium was being carried by them and as such the order of the learned Chief Judicial Magistrate, Chittorgarh to proceed against the petitioners for offence punishable under Section 25 of the N.D.P.S. Act is in accordance with law. (6). I have given consideration to the submissions made at the bar. (6). I have given consideration to the submissions made at the bar. Cognizance of the offence is taken by the Court under Section 190, sub-section (1) Clause A, B and C(1) of the Cr.P.C. One essential condition for taking cognizance is that the complaint or the police report or the information received by the Magistrate must contain facts constituting an offence. It means that if the complaint, police report or the information received by the Magistrate does not contain facts constituting the offence than no cognizance of the offence could be taken under Section 190, Sub-section (1), Clause A, B and C of the Criminal Procedure Code. What is meant by taking cognizance for the purpose of Section 190 Cr.P.C. is not open to any doubts. It was held by the Division Bench of the Calcutta High Court in Emperor vs. Sourendra Mohan Chakrabotty (1) "that taking cognizance does not require any formal action or indeed action of a kind but it occurs as soon as a Magistrate as such applies his mind to the suspected commission of an Offence". The observations of the Division Bench of the Calcutta High Court have been consistently follo- wed by all other High Courts. And the observations have been approved by the Supreme Court right from 1951 to this day. In this behalf reference may be made to R.R. Chari vs. State of U.P. AIR(2) and Mowu vs. Superintendent Special Jail Nawgaon (3). Since taking cognizance is almost an automatic act which occurs as soon as the Magistrate applies his judicial mind to the facts brought to his notice either by means of a complaint or by means of police report under Section 173 Cr.P.C. or in the form of information received from any person other than Police Officer or such facts are in the personal knowledge of the Magistrate, if the Magistrate is acting for the purpose of exercising the judicial powers under the Code and the facts placed before him constitute an offence, the cognizance of which is not barred by any law for the time in force, then as pointed out by the Division Bench of the Calcutta High Court taking cognizance does not require any formal action or indeed any action of a kind but it occurs as soon as the Magistrate as such applies his mind to the suspected commission of an offence. Of course, if taking cognizance is barred by or under law in force or the law requires that cogni- zance can be taken only on certain conditions being satisfied then in order the Magistrate may take cognizance under Section 190 Cr.P.C. the conditions necessary for taking cognizance will have to be satisfied before cognizance is taken. (7). It is also well established by the ruling of the Supreme Court in Raghuvansh Dubey vs. State of Bihar (4) that when a Magistrate takes a cognizance, he takes a cognizance of an offence and not of the offenders and after taking cognizance it is his duty to find out who the offenders are and if comes to the conclusion that besides the accused persons forwarded to him under Section 170 Cr.P.C. some other persons are also involved in the commission of the offence then it is not only his right it is his duty to proceed according to law. Therefore, after the submission of the complaint or the report under Section 173 Cr.P.C. and after taking cognizance under Section 190 Cr.P.C. it is the duty of the Court to find out who the offenders are and to proceed against the offenders. The provision under which the order to proceed against the offence can be passed is Section 204 of the Cr.P.C. which empowers the Court to issue summons or warrant of arrest to secure the attendan- ce of those persons who appear to be responsible for the commission of offence, provided there is sufficient ground to proceed against them. Therefore, in cases where the Magistrate has taken cognizance of an offence under Section 190 Cr.P.C. in accordance with the law and issued process against any person, if such person makes a grievance that he has been proceeded against without any evidence then his grievance would in fact be not against the taking of cognizance of an offence but against issue of process under Section 204 Cr.P.C. Where there is a time gap between two acts namely the act of issuing process under Section 190 and the act of issuing process under Section 204 Cr.P.C. there is no difficulty in perceiving the difference between these two powers of the Magistrate. But sometimes this gap is invisible because a report under Section 173 is submitted in the Court and the Court is then and there called upon to issue process against the accused persons. But sometimes this gap is invisible because a report under Section 173 is submitted in the Court and the Court is then and there called upon to issue process against the accused persons. In either case before a Magistrate procedure under Section 204 Cr.P.C. he must be satisfied that there are sufficient grounds to proceed against the accused persons. In this case the petitioners grievance is that there is no evidence justifying the issue of process against the petitioners or proceeding against them in pursuance of the Order dated 12-7-89. The crucial question, therefore, is whether there is or is not sufficient ground to proceed against the petitioners. In the instant case it appears that opium was recovered from inside bags which were being carried by Jagbir Singh and Babu Bhai. Even inside the bags the opium was closed in packets and there is nothing to indicate in the recovery memo that the packets were smelling opium. In these circumstances it cannot be inferred that merely because the petitioners had permitted Jagbir Singh and Babu Bhai to travel in the truck they committed any offence under Section 25 of the N.D.P.S. Act. The learned Chief Judicial Magistrate has not pointed out any reason for coming to the conclusion that he was satisfied that there were grounds to proceed against the petitioners. He has merely referred to the fact of arrest at the time of the recovery and adopted a reasoning which cannot be justifying by any can of criminal jurisprudence. The learned Chief Judicial Magistrate has not pointed out any reason for coming to the conclusion that he was satisfied that there were grounds to proceed against the petitioners. He has merely referred to the fact of arrest at the time of the recovery and adopted a reasoning which cannot be justifying by any can of criminal jurisprudence. In this order he has observed ^^ckdh vfHk;qDrx.k dh fxjQ~rkjh dh tks QnZ gS mlesa ;g fn[kk;k x;k gS fd vfHk;qDrx.k us uktk;t vQhe lfgr viuh Vªd csb fcBk;k gS blfy, budks fxjQ~rkj fd;k x;k gS vkSj Vªd tCr fd;k x;k gSA bl fookl ds foijhr fdlh izdkj dk dksbZ izek.k i=kkoyh ij ugha gS fd uktk;t vQhe lfgr txchjflag o ckcwHkkbZ dk gksuk vU; vfHk;qDrx.k dks Kku ugha FkkA vkSj fdu dkxt ds vk/kkj ij ;g ekuk tk, fd fookl ds vk/kkj xyr Fks ftu ij bUgsa fxjQ~rkj fd;k x;k vksj Vªd dCts esa fy;k x;kA og fookl vc xyr lkfcr gqvk gSA izkFkZuk i=k esa ,slk dksbZ dkj.k ugha crk;k x;k gS fd og dkSu lk lk{; feyk fd ;g vQhe txchj lfag o ckcwHkkbZ fcuk bldh tkudkjh ds ysdj is FksA vfHk;qDrx.k us vQhe lfgr bu nksuksa dks vius Vªd esa fcBk;k fuEcfgjkjksA above words indicate that Chief Judicial Magistrate attached undue importance to arrests made at the time of the recovery from Jagbir Singh and Babu Bhai and he proceeded on wrong premises by demanding proof of innocence for the purpose of accepting the application under Section 169 Cr.P.C. in place of finding out whether there was sufficient grounds to proceed against them within the meaning of 204 Cr.P.C. He altogether ignored that the well established maxim governing all Criminal trials is that a person is presumed to be innocent unless he is found guilty. This maxim is not without reason. In our criminal jurisprudence innocence is a symbolic name for absence of guilt or crime and absence by itself being a non-entity cannot be positively proved by any evidence, save that it can be inferred by a set of circumstances. This maxim is not without reason. In our criminal jurisprudence innocence is a symbolic name for absence of guilt or crime and absence by itself being a non-entity cannot be positively proved by any evidence, save that it can be inferred by a set of circumstances. Since a non-entity cannot be proved by direct evidence the jurists who are responsible for evolving the maxim as stated above have shifted the bur- den of proof on the prosecution so that where the prosecution comes forward with a certain story and the story is in the form of a positive event provable by material evidence it is this event which should be proved and not the innocence of the accused. It is true that in some cases the Court is under a legal obligation to draw certain presumption but in the absence of presumption of guilt the Court has to apply his judicial mind in accordance with the provisions of Section 114 and Section 3 of the Indian Evidence Act. The learned Public Prosecutor has not drawn my attention to any provision which may justify the conclusion drawn by the learned Chief Judicial Magistrate that if a man has been arrested by the police then he should be presumed to be guilty unless positive evidence of his innocence is pro- duced. While applying his mind under Section 204 Cr.P.C. it was obligatory on the part of the Chief Judicial Magistrate to consider whether there was or there was not sufficient ground for proceeding against the petitioners. Whether the police arrested him without a legal justification or on sufficient ground was not a relevant fact at that stage. It is not unusual to come across the cases where arrest are made without any justification and solely on the ground that Officer has been given the power to the arrest. (8). A perusal of the record that there is no evidence to lead to the conclusion that the petitioners who had permi tted Jagbir Singh and Babu Bhai to travel in the truck actually knew or had reason to be lead that Jagbir Singh and Babu Bhai were carrying opium. (8). A perusal of the record that there is no evidence to lead to the conclusion that the petitioners who had permi tted Jagbir Singh and Babu Bhai to travel in the truck actually knew or had reason to be lead that Jagbir Singh and Babu Bhai were carrying opium. Therefore, it must be held that there was no sufficient ground to proceed against the petitioners within the meaning of Section 204 Cr.P.C. and the order dated 12-7-89 passed by the Chief Judicial Magistrate, Chittorgarh does not appear to be in consonance with the law laid down by the Supreme Court in Abhinanda Jha vs. Dinesh Mishra (5). (9). The petition, therefore, deserve to be allowed and is hereby allowed. The order dated 10-7-89 passed by the learned Chief Judicial Magistrate, Chittorgarh is hereby set aside. The record of the trial Court be returned for proceeding according to the law.