STATE OF MAHARASHTRA Vs. SHEOSHANKAR BACHHOORAM PANDE

JUDGEMENT

(1.) The reference to the Division Bench has arisen under the following circumstances; Madhukar Moghe was the proprietor of a Medical Stores run under the name and style 'Anil Medical Stores', Bhandara, Sheoshankar Pande was a head constable attached to the police station at Bhandara at the relevant time. It appears that he effected search of the Stores under the Bombay Prohibition Act and the same day he approached Moghe and made enquiries about the contents of the box which he was carrying. Moghe informed the head constable that the box contained Ayurvedic medicines which he intended to take to Sakoli. The head constable searched the bos, and on search it was found that it contained a number of bottles containing Gajarasava. The head constable then seized the box, put Moghe under arrest and asked him to proceed to the police station and, when Moghe refused to do so, he was handcuffed. He paraded Moghe through the town. Moghe lodged a complaint on January 2, 1963, in the Court of the Judicial Magistrate, First Class, Bhandara, contending that the head constable acted maliciously in putting him under arrest and that he handcuffed and paraded him through the streets of the town with a view to disgrace him in the public eye. This complaint is purported to be filed under Section 220 of the Indian Penal Code.

(2.) THE head constable raised a preliminary objection contending that the prosecution was barred under Section 146 -A of the Bombay Prohibition Act. The trial Magistrate overruled the objection and directed the case to proceed according to law. From that judgment, the head constable went in revision to the Sessions Court. The learned Sessions Judge took the view that the complaint would be barred by limitation under Section 146 -A of the Bombay Prohibition Act, and since he had no power to quash the order he referred the matter to the High Court for passing appropriate orders.

(3.) IN order to appreciate the rival contentions urged before us, it is necessary to refer to some of the provisions of the Bombay Prohibition Act. Chapter VIII of the said Act relates to excise duties. Section 105 defines the articles on which such duty may be leviable. Section 107 defines the power of the Collector for effecting a search in respect of dutiable goods and seizing them. Chapter IX defines the powers and duties of officers entrusted with the duties under the Prohibition Act. Section 117 lays down; Save as otherwise expressly provided in this Act, all investigations, arrests, detentions in custody and searches shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898. The proviso to that section then modifies the well recognised principle that the panchas for the search must be inhabitants of the same locality as the premises. Section 118 makes offences under the Prohibition Act cognizable. Section 120 gives powers to the Director, Collector, or any Prohibition Officer duly empowered in this behalf by the State Government to effect an entry in a warehouse, godown, shop etc. and inspect the goods and seize contraband articles. Section 121 empowers the Prohibition Officer duly empowered by the State Government to open the packages of any articles.