AZIM ULLAH Vs. STATE

JUDGEMENT

(1.) The applicant was prosecuted on a report of a station officer of a police station under Section 60, Excise Act, on the allegation that when his house was searched by the station officer he was found to be distilling illicit liquor. Evidence was led by the prosecution to prove that he was caught distilling illicit liquor and it was accepted by the trial Court, which convicted him under Section 60 (a) and (b), Excise Act. The trial. Court sentenced him under Section 60 (b) to rigorous imprisonment for one year and refrained from passing another sentence under Section 60 (a) on the ground that the sentence (under Section 60 (b)) covered that offence as well. The appeal was dismissed by the Additional Sessions Judge, who upheld the finding of the trial Court that the applicant had distilled illicit liquor. There is a mistake in the judgment of the Additional Sessions Judge, inasmuch as he writes that the applicant was "acquitted" of the charge under Section 60 (a). What the trial Court did was to convict him under both 60 (a) and 60 (b), but to sentence him only under Section 60 (b). Of course it was quite wrong on the part of the trial Court to say that it would not pass any sentence under Section 60 (a). As only one offence was committed, only, one sentence could be passed, but the trial Court ought to have said that that sentence covers both the offences instead of saying that it would not pass a sentence for the other offence. If a Court convicts a person under two offences, it cannot refuse to pass a sentence under either of them. It may be obliged to pass one sentence, but that sentence must cover both the offences of which, he has been convicted.

(2.) The conviction was challenged solely on the ground that the trial Court took cognisance of the offences on a complaint or report of an authority other than an "excise officer." What was contended is that a station officer in charge of a police station is not an "excise officer" within the meaning of Section 70, Excise Act and in support of that contention State v. Badruddin, 1950 A. L. J. 263: (A. I. R. (37) 1950 ALL. 436: 51 Cr. L. J. 1152), was relied on. There Dayal J. remarked that the case was reported by a station officer in charge of a police station and not an

(3.) It was argued that an "Excise Officer" ' within the meaning of Section 70 must be an officer specially empowered to make a complaint or report, and that a station officer of a police station who has been empowered to perform the acts and duties mentioned in Sections. 48 and 50 may be an Excise Officer with reference to those duties, but cannot be said to be an Excise Officer within the meaning of Section 70. This argument is fallacious and does not appeal to me. There is no reason to believe that the Legislature made any distinction between one Excise Officer and another. There is nothing like one being an Excise Officer for certain purposes and another being an Excise Officer for other purposes. Any person who can be called an "Excise Officer", can make a complaint or report under Section 70; it would be quite irrelevant to consider how he became an Excise Officer, whether on account of his being invested with the power of making a complaint or report of a cognisable offence, or on account of his being invested with some other power. Once some power mentioned in Section 10 is conferred upon an officer, he becomes an "Excise Officer" as defined in Section 3 (2), and any person who is an "Excise officer" as defined in that provision is an "Excise Officer" whereever that phrase is used in the Act. The fallacy in the argument of learned counsel for the applicant would be apparent from the fact that all the powers mentioned in the Act cannot be delegated by the Provincial Government. The powers that can be delegated by the Provincial Government are expressly mentioned in Section 10, and the power of making a complaint or report of an offence punishable under the Excise Act is not such a power. So, such a power could not possibly be conferred by the Provincial Government upon anyone. And if it could not be conferred, it cannot be argued that a station officer in charge of a police station, though he is an Excise officer for certain purposes, is not an Excise officer for the purposes of Section 70 because the power mentioned in that section has not been conferred upon him.