PRAVAT KUMAR SAHA AND ANOTHER Vs. THE STATE

JUDGEMENT

(1.) The Superintendent of Excise, Burdwan, called upon one Probhat Kumar Saha and Satyaranjan Banerjee to explain why their excise licence should not be cancelled under section 42 of the Bengal Excise Act, 1909 or why they should not be otherwise punished, as arrival of certain consignments of foreign liquor in the excise shop belonging to them was not reported to the Excise authorities. On March 23, 1973, the Superintendent of Excise called upon them to pay 1000.00 by way of composition of the offence under section 65 of the Bengal Excise Act in lieu of cancellation or suspension of licence. The money was to be paid by March 28, 1973. As the money was not paid by the same date on March 29, 1973 the Superintendent of Excise directed the C.S.I. to start prosecution against the petitioners. On March 30, 1973, Criminal Case No. 330 of 1973 was filed in the Court of Sub-Divisional Judicial Magistrate against the petitioners and orders were passed for issue of summons under section 46(a) of the Bengal Excise Act read with Sec. 54(B) and (C) thereof. It, however, appears that the Additional District Magistrate, Burdwan, on an appeal made by the petitioners passed an order on March 29, 1973 staying realisation of the composition money and the same was also communicated to the Superintendent of Excise on March 29, 1973. The petitioners filed an application before the learned Sub-Divisional Judicial Magistrate for discharge under section 253 (2) of the Criminal Procedure Code, but the prayer was disallowed on the ground, inter alia, that the composition was a departmental action, but the prosecution was not barred under section 43 of the Code of Criminal Procedure. Being aggrieved the petitioners presented an application under sections 435 and 438 of the Code of Criminal Procedure praying that a reference should be made to the High Court with recommendations. Upon that the present reference was made by the learned Additional Sessions Judge, 1st Court, Burdwan.

(2.) It was argued on behalf of the petitioners that in terms of Sec. 65(2) of the Bengal Excise Act it was open to the petitioners to make payment until their appeal was rejected by the Collector. The said section 65 is as follows :

(3.) Mr. Chakraborty, the learned Advocate appearing on behalf of the State, however, argued that the said sub-section constitutes a bar to prosecution only in case of actual payment being made. So long as the payment was not made there was no bar to prosecution under the sail sub-section. It is true sub-section (1) authorises the Collector or any Excise officer to compound an offence and to realise the property liable In confiscation, but that does not prevent prosecution being launched when the composition money is not paid. It is difficult to accept Mr. Chakrabortys contention. Before the prosecution was initiated the question of composition was pending before the Collector who had made an order of stay. The order of stay clearly contemplates a restraint on the subordinate officers to take any further action until the appeal itself was disposed of.