BANAVATH LALU Vs. STATE

JUDGEMENT

(1.) The petitioners are accused 1 to 3 in C.C. No. 7 of 1992 on the file of the Judicial 1st Class Magistrate, Kalwakurthy. Charge-sheet has been filed by the police against the petitioners under Section 34(a) of the A.P. Excise Act, 1968, (for short, 'the Act'). The petitioners filed Crl.M.P. No. 400 of 1992 under section 239 of the Code of Criminal Procedure (for short 'the Code') before the learned Magistrate seeking their discharge on the sole ground that the police are not competent to file charge-sheet and the Magistrate cannot take cognizance of the case on that charge-sheet and that the charge sheet is not a report within the meaning of Section 57 of the Act. The learned Magistrate rejected the petition holding that the Magistrate is empowered to take cognizance of the case on the charge-sheet filed by the Police. Questioning the said this Crl. Revision Case is filed.

(2.) The contention of Sri C. Padmanabha Reddy, Senior Advocate appearing for the petitioners, is that the powers conferred on Police under the Code are exclusively entrusted to the Excise officials and that under Section 57 of the Act the investigation into the offences under the Act has to be done by an Excise officer not below the rank of Excise Sub Inspector. It is also contended that on a combined reading of Ss. 52 of 61 in Chapter VIII of the Act it would be clear that only the Excise officials are entrusted with the investigation of the offences under the Act and if such powers are given to the Police, there will be parallel investigation and it is contrary to the scheme of the Act for investigation of the offences under the Act.

(3.) It is true that the powers of investigation into the offences under the Act are entrusted to the Excise officials. Thus Act being a special enactment, the Legislature thought fit to entrust the powers of inspection, seizure, arrest and investigation to the Excise officials. Under Section 4 of the Code all offences under I.P.C. shall be inquired into and tried in accordance with the provisions of the Code; but all the offences under any special Law shall be investigated, inquired into and tried in accordance with the provisions of any special enactment for the time being in force regulating the manner of investigation. Therefore, the procedure for investigation, can be regulated into the offences under the special enactment by its provisions. If there is no such special/procedure, the procedure under the Code is applicable. Section 56 of the Act provides that any Excise officer not below the rank Excise Sub Inspector, as regards the offences under S. 34, etc. can exercise the powers conferred on an officer incharge of a Police Station by the provisions of the Code. Under Section 57 of the Act if an investigation has been made by an Excise officer not below the rank of Excise Sub Inspector, such investigating officer shall submit a report to the Magistrate and such report was deemed to be a police report under Section 190 of the Code, and the Magistrate on such report can take cognizance of the offence. Section 61 of the Act is the crucial provision in this case to determine the validity of the report given by the police officer. It provides that a Magistrate shall take cognizance of offences punishable under provisions of the Act other than Section 48, on the complaint or on the report of an Excise Officer or of a police officer. The Section therefore specifically empowers the Magistrate to take cognizance on a police report.