PUBLIC PROSECUTOR Vs. DAWOOD

JUDGEMENT

(1.) This appeal raises a question relating to the interpretation of Sec. 247 of the Code of Criminal Procedure. It is filed by the Public Prosecutor against the order of the Second Class Magistrate acquitting the respondent under Sec. 4(1)(a) of the Madras Prohibition Act. It was the prosecution case that the respondent was found in possession of 24 drams of I D. arrack in an alluminium vessel at 6-30 p.m. on 12-4-1954 at Gopalapatnam near his tea stall, an offence punishable under Sec. 4(l)(a) of the Madras Prohibition Act. The case was taken on file on the report of the Deputy Prohibition Officer on 24-6-1954 and posted for trial to 1-7-1954 at 1 p.m. to suit the convenience of the Prohibiton Inspector. On 1-7-1954 the Prohibition Officer sent a letter requesting the court that it may not be taken up till 3 p.m. At about 4 p.m. the case was called and as the Sub Inspector did not appear while the accused and his lawyer were present, the magistrate acquitted the accused under Section 247 Gr. P. C. It is against this order that the present appeal is filed.

(2.) The point for determination in this appeal is whether the order of acquittal is correct. It is urged by the learned Public Prosecutor that the lower court ought to have dispensed with the attendance of the Deputy Prohibition Officer and proceeded with the case as he is a public servant within the meaning of proviso to Section 247 Cr. P. C. This contention cannot be given effect to. It does not appear that the case could proceed in the absence of the complainant nor any such request made to the court. In fact, the officer concerned wanted the case to be taken up after 3 p. m. It is nowhere stated that the presence of this officer was not required. It does not appear that there was any other witness present that day which means that the case against the accused turned mainly on the evidence of the Prohibition Officer. It is only in cases where the personal attendance of the complainant is not necessary that the proviso will be attracted. Nor is it obligatory on the magistrate to dispense with the attendance suo motu and proceed with the case. Another contention raised by the public Prosecutor is that the present case does not come within the operation of that section for the reason that the case was not started on a complaint, but on the report of a Prohibition Officer. According to him, a case under the Prohibition Act has to be initiated by a Police or Prohibition Officer sending a report to the concerned magistrate in the manner indicated in Section 48 of the Prohibition Act and report of a Prohibition Officer is more in the nature of a charge-sheet rather than a complaint. The position of a Prohibition Officer should be equated to that of a Police Officer for the purpose of Sec, 48, argues the learned Public Prosecutor.

(3.) This argument cannot prevail. A Prohibition Officer shall be deemed to be a Police Officer only for the purpose of Sec. 125 of the Indian Evidence Act, 1872 which means he will be treated as a Police Officer only for a limited purpose. He cannot be regarded as a Police Officer for any other purpose. In Venkatareddy v. Emperor Justice Rajamannar (as he then was decided that a Prohibition Officer was not a Poiice Officer within the meaning of Section 25 of the Evidence Act. To the same effect is thejudgment of Mr. Somasundaram in Srinivasa Narasimha Bayankar v. state who ruled that a Prohibition Officer was not a Police Officer either within the meaning of Section 162 Cr. P. C., or Section 25 of the Indian Evidence Act. I express my respectful accord with these rulings. It has also to be remembered that the report of, a Police Officer is not a complaint by virtue of Sec. 4(h) of the Criminal Procedure Code, which has specifically excluded the report of a .Police. Officer. But for this exclusion, the report of even a Police Officer would have come under the category of a complaint.