BABOO LAL & ANR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition under Sec. 482 CrPC challenges the order dated 8.8.1989, passed by learned Munsif and Judicial Magistrate, Jaitaran in Cr. Case No. 85/86 by which he framed charges under Sec. 4(l)(a) and 4(2) of Rajasthan Prohibition Act and different sections of Motor Vehicles Act. Besides, it has been prayed that Rajasthan Prohibition Act is a dead law and offence was committed on 6.3.1979 but the trial did not proceed speedily, hence, the fundamental right to speedy trial guaranteed under Art. 21 of the Constitution of India is plainly and manifestly violated. It has, therefore, been prayed in the alternative that the proceedings may be quashed. I have heard learned counsel for the petitioner as well as learned Public Prosecutor.

(2.) On 6.3.1979 Head Constable Bahadur Singh and Head Constable Kesu Khan were posted at Police Station Kalu and were on checking duty. At about 1.00 AM they saw a je ep coming. The jeep was stopped and on search it was found that there were 18 gunny bags containing 408 bottles of liquor. It is alleged that out of them 3 bottles were taken as sample. Noor Mohammed and Baboo Lal were arrested by Head Constable Bahadur Singh. A challan was submitted in the court of Munsif and Judicial Magistrate, Jaitaran. It was tried as a complaint case and PW. 1 Bahadur Singh and PW. 2 Mangal Singh were examined as prosecution witnesses. On 22.9.1984 accused persons submitted on application that no charge can be framed as Head Constable Bahadur Singh who had searched and seized the liquor and arrested the accused persons, had no authority under Sec. 42 of Rajasthan Prohibition Act to do so. This application remained pending for about five years and it was on 8.8.1989 that it was dismissed and charges were framed against the petitioners.

(3.) Learned counsel for the petitoners submitted that no charge could be framed under Secs. 4(l) (a) and 4(2) of Rajasthan Prohibition act as Head Constable Bahadur Singh was not authorised under Sec. 42 of Rajasthan Prohibition Act to take search, seize or arrest any person. His submission is that he was an un-authorised officer and on his search and seizure the charge could not have been framed as no conviction can be recorded on such an illegal search and seizure. He has drawn my attention towards a notification dated 23.7.1969 which authorises every Police Officer of Police Department not below the rank of Sub Inspector of Police to be the Police Officer authorised in that behalf by the StateGovernment who could seize, detain, search and arrest any person committing an offence punishable under Sec. 4 or Sec. 5 of the Rajasthan Prohibition Act. His second submission is that learned Magistrate has framed the charge for 408 bottles while the samples were taken from 3 bottles only and therefore, it cannot be said that in order 405 bottles the liquid was liquor. Hence, the charge for 408 bottles is ground-less. His third contention is that there has been an inordinate delay in trial and the Rajasthan Prohibition Act was repealed and is a dead law. So, the trial is not belated and fundamental right of speedy trial of the petitioners has been violated and therefore, the proceedings deserve to be quashed.