STATE OF RAJASTHAN Vs. MASITA

JUDGEMENT

(1.) THIS is an appeal filed by the State against a judgment of Special Excise Magistrate, First Class, Jaipur, dated 6th February, 1971, acquitting Masita respondent of an offence punishable under sec. 54 of the Rajasthan Excise Act, 1950.

(2.) THE prosecution case against the respondent was that on 19-10-1968 at about 8 15 a.m he was seen near Nawab crossing Ghat Gate, Jaipur, carrying illicit liquor in a gunny bag on the carrier of his cycle by Head Constable Radha Gopal and two other Constables who were patrolling the area. THE Head Constables asked the respondent to stop but the latter ran away after leaving the cycle, the gunny bag containing 8-1/2 bottles of illicit wine and his Chhappals. THE Head Constable seized all these articles in the presence of Motbirs after taking a sample of illicit wine for chemical analysis. THE articles seized were properly sealed there and then. THE Head Constable thereafter made a written report to the Station House Officer, Ramganj police station, who registered a criminal case on its basis and deputed the informant to make an investigation into the case Radha Gopal conducted the usual investigation and sent the sample to the Chemical Analyser for analysis, who later on gave a report that the sample of wine contained 12.54 per cent V/V ethyl alcohol. After collecting other necessary evidence, Radha Gopal Head Constable submitted the papers to Madan Lal, Station House Officer, police station, Ramganj, who, eventually made a report to the learned Magistrate for taking cognizance of the offence under sec. 54 of the Rajasthan Excise Act, hereinafter referred to as the Act.

(3.) THE next question that remains to be decided is whether failure to conduct investigation into this offence by a competent police officer has vitiated the trial and has caused any prejudice to the accused-respondent. In my opinion, investigation by a Head Constable in violation of the referred-to-above notification was only an irregularity which was curable under sec. 537 of the old Criminal Procedure Code, which corresponds to sec, 460 of the new Criminal Procedure Code. THE learned counsel for the respondent could not show in what manner the respondent was prejudiced by the illegal investigation. Liquor alleged to be illict was not recovered during the course of investigation. It was seized by Head Constable Radha Gopal on the spot when he had seen the respondent carrying it away in a gunny bag on the carrier of his cycle. Under the Act the Head Constable could seize the liquor if he suspected it to be illicit. It appears that after the seizure, Shri Radha Gopal had made a report to the Station House Officer, police station, Ramganj and that on the basis of this report the investigation commenced. Consequently, I am of the view that the trial court committed an error in holding that the investigation conducted by an inferior officer, who was not authorised to investigate, has vitiated the trial and has prejudiced the accused-respondent. In support of my above view, I may rely on an authority of the Supreme Court in H. N. Rishbud vs. State of Delhi (2), wherein their Lordships were pleased to make the following observations on this point: "A defect or illegality in investigation, however serious, has no direct bearing on the competence to the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in sec.190, Criminal P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Sec. 190, Criminal P.C, is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings."