LALCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of instant petition under Section 482 of the Code of Criminal Procedure petitioners seek to quash the order of the Judicial Magistrate, Sirohi dated 15.2.2003 dismissing the petitioners' application under section 67(2) of the Rajasthan Excise Act, 1973 (sic ?) (hereinafter referred to as the Act of 1973).

(2.) Shorn of unnecessary details the factual back ground giving rise to the instant petition are that on 10.7.97 police seized excisable articles from the possession of the petitioners and two others and registered a case against them. After investigation police laid charge-sheet against the petitioners for offence under section 19/54 and 65/54 of the Act of 1973 on 4.1.99. Apparently the prosecution was barred by limitation in view of Section 7 of the Act of 1973 having filed beyond one year. The petitioners by way of an application dated 30th March, 2001 sought discharge on the ground that the order of taking cognizance was ex facie illegal as the charge-sheet was filed beyond the statutory limitation provided under Section 67(2) of the Act of 1973. During the pendency of the application the State Government granted special sanction for the prosecution by order dated 3rd April, 2002. The prosecution contested the application on the ground that in a case where State has granted special sanction for the prosecution the provision of limitation is not attracted. The learned Magistrate accepted the contention of the prosecution and dismissed the application filed by the petitioners by the impugned order.

(3.) It is contended by the learned counsel that Division Bench of this Court (1) Gurcharan Singh V/s State of Rajasthan reported in 2001(3) Rajasthan Cri. Decisions page 1 has held that the provisions of Section 67 of the Act of 1973 will prevail over section 468 Cr.P.C. It is submitted by the learned counsel that the learned Magistrate has committed error in not considering that at the time the court considered the police papers for taking cognizance the special sanction of the State did not exist as such there was statutory bar of taking cognizance. On the other hand it is contended by the learned Public Prosecutor that once a special sanction has been granted by the State Government the limitation of prosecution provided under sub-section (2) of Section 67 is completely wiped out.