DANDAPANI NADAR AND ORS Vs. STATE OF MADRAS

JUDGEMENT

(1.) This is a Revision against the conviction of the petitioner for an offence under Section 4(1)(b) of the Madras Prohibition Act, that is, for manufacturing liquor or any intoxicating drug. The Police Officer on receipt of information that some persons are distilling illicit liquor at Vennar Padugai went with two Head Constables and three Constables for a raid. According to the case of the prosecution he saw accused 1 and 2 together distilling arrack in a still. Accused 1 was said to have been kindling the fire in the oven and accused 2 changing water in the pot. The Police Officer arrested both accused 1 and 2. Then the Officer put out the fire at the oven, dismantled the still, recovered the boiler pot, M.O. I which contained two gallons of boiling wash, the mud perforated pot, M.O. 2, stone rests, M.O. 3 series, the receiver chatti, M.O. 4, the mud condenser pot, M.O. 5 and the burnt firewood pieces, M.O. 8 series. Then after taking a sample of the wash from M.O. 1 he destroyed the remaining wash and then after further investigation charge-sheeted the petitioner.

(2.) The charge-sheet was laid under Section 173, Criminal Procedure Code. Under the provisions of the Criminal Procedure Code, that is, under the provisions of Section 170, Criminal Procedure Code, when the Police Officer forwards the accused person to a Magistrate, or takes security for his appearance before such Magistrate, he is to send the material objects which he has seized to the Magistrate in the form prescribed for the same. Normally he should also send the wash which he recovered, to the Magistrate. But under the provisions of Section 32 of the Madras Prohibition Act, as amended, where toddy or wash or sonti soru is seized, it is enough if a sample alone is sent to the Magistrate, the Police Officer may destroy, or cause to be destroyed on the spot, the wash, toddy or sonti soru seized by him. This is a special power which is derived under the provisions of the Madras Prohibition Act.

(3.) On account of the Police Officer acting under the provisions of this section of the Madras Prohibition Act, it is contended by Mr. Srinivasagopalan that the Police Officer really followed the procedure prescribed under the Madras Prohibition Act, and therefore what he filed in this case is not charge-sheet but must be considered as a report under Section 48, in which case the provisions of Section 252, Criminal Procedure Code, will apply. Ramaswami Gounder, J. and myself held in Pavadai, In re, (1957) 1 MadLJ 41 :, I.L.R. (1957) Mad. 475, that it is open to the Police Officer to investigate into an offence under the Prohibition Act either in accordance with the provisions of Chapter XIV of Criminal Procedure Code or according to Chapter V of the Prohibition Act. If he follows the former, that is, if he investigates according to the provisions of the Criminal Procedure Code, then the report that he files in Court will be one under Section 173, Criminal Procedure Code; Section 251-A of the Criminal Procedure Code will then apply. But if he follows the procedure prescribed under Chapter V of the Prohibition Act, then notwithstanding his calling it a report, it will be a report under Section 48. That means it will be on a par with a complaint filed by a Prohibition Officer, who investigates into the offence. That means the provisions of Section 252, Criminal Procedure Code, will apply. Many of the provisions of the Madras Prohibition Act, with regard to the investigation of offences under that Act, which may be done either by the Collector or by a Police Officer or by a Prohibition Officer or even by a person authorised by the Government or by the Collector, are similar to the provisions of the Criminal Procedure Code and the differences are only a few. As for instance in the case of recovery of wash, whoever investigates into prohibition offences, either a Police Officer or any other person, he can destroy the wash after taking a sample. But I do not think such a thing can happen if he follows the procedure prescribed under the Criminal Procedure Code. There are some other provisions as well in the Prohibition Act, which differ from the provisions of the Criminal Procedure Code. For instance a Police Officer can compel the accused to go to a doctor. Under Section 41-A of the Prohibition Act any Officer including a Police Officer may produce such a person before any medical officer authorized by the State Government for examination, and if the person refused to undergo a medical examination a penalty is prescribed for the same. There is no similar provision in the Criminal Procedure Code. It is, therefore, obvious that for the investigation of offences under the Prohibition Act certain special powers have been given to the Officer investigating those offences, whether they are Police Officers, or other Officers, which powers are not given to the Police Officer when they investigate under the Criminal Procedure Code. It is, therefore, contended that any Police Officer who exercises the powers conferred under the Prohibition Act must be deemed to have followed the procedure prescribed under the Madras Prohibition Act, and therefore the report that he files must be treated as one under Section 48 and not one under Section 173, Criminal Procedure Code. This is a question which will frequently arise in prohibition cases. In my opinion, it is a question of importance as to whether in such cases the report filed is one under Section 173 of the Criminal Procedure Code or whether it is a report under Section 48 of the Madras Prohibition Act. It is better that the question is decided authoritatively by Bench of this Court.