STATE OF RAJASTHAN Vs. AMAR SINGH

JUDGEMENT

(1.) THE Station House Officer, Behror submitted a complaint before the Munsif and Judicial Magistrate First Class Behror under section 16/54 of the Excise Act. THE respondent was found coming on a cycle on 13 9 70 near Dosade at a distance of about one mile from that village. On cycle carrier he was carrying a wooden case containing two rubber bladders full of liquor. THE Head Constable Ram Prasad having sensed the smell of the wine checked the respondent and found two rubber bladders full of liquor in the wooden case. Samples weighting 250 grams of liquor were taken from each of the rubber bladders and were sent to the Chemical Examiner, Jaipur. THE complaint was filed by the Station House Officer Behror on 29-12-70 in the Court of Munsif and Judicial Magistrate First Class Behror, District Alwar.

(2.) AN application was made on 14.6.74 before the learned Magistrate on behalf of the respondent that the complaint was not maintainable as it was not made as provided under section 67 of the Excise Act. The relevant portion of section 67 of the Excise Act reads as under: - "67(1) No Magistrate shall take cognizance of an offence punishable - (a) under sec. 54 or sec. 59 or sec.63 except on his own knowledge or suspicion or on a complaint or the report of an Excise Officer, ..........................................................." The Excise Officer has been defined under sec. 3(7) the Excise Act as to mean any officer or person other than the Excise Commissioner appointed under sec. 9 or invested with the powers of an Excise Officer under this Act. I may also refer to section 10 of the Act which has got material bearing on the question which confronts me It reads as under: - "10. Appointment of officers and conferring powers: (1) The State Government may - (a) empower any officer to perform the acts and duties mentioned in Chapter VIII and (b) order that all or any of the powers and duties assigned to an officer of the Excise Department under this Act shall subject to the provisions thereof, be exercised and performed by any officer other than and Officer of the Excise Department or by any other persons." Under section 10 the Government may order by a notification that all or any of the powers and duties assigned to an Officer of the Excise Department under this Act shall subject to the provisions thereof, be exercised and performed by any Officer other than an Officer of the Excise Department or by any other person. Section 10, therefore, gives ample power to the Government to invest any Officer with the powers, duties and functions of an Excise Officer. Whether the Station House Officer Behror who had filed the complaint before the learned Magistrate Behror could be deemed to be invested with the powers of an Excise Officer under the Act? It may be pointed out here that the State Government in exercise of its powers conferred under section 10 of the Act issued the following notification: "(6) No. D. 6774/58 F. 37(1) SR/53-11 dt. 23.11.59 R. G.G. IV(C) dt 18-2-60 page 1234-5 In exercise of the powers conferred by Sec. 10(b) of the Rajasthan Exercise Act, 1950 (Act 11 of 1950), and in suppression of the notification No. F. 37(1) SR/53/II dated the 18th January, 1958, the Government of Rajasthan does hereby order that with effect from the date of publication of this notification in the Rajasthan Gazettee the following officer of the State of Punjab shall exercise within the district of Rajasthan shown against them respectively the powers under secs. 45 and 47 of the said Act in respect of intoxicating drugs and liquor as defined in secs. 3(14) and 15 thereof on the condition that the persons arrested and things seized shall be immediately handed over to the Excise Inspector of the circle concerned, namely: - Officers. District of Rajasthan. 1. Excise and Taxation Officer, the Assistant Excise and Taxation Officer, Excise Inspector and Excise Sub-Inspector posted in - (a) Hissar District. (a) Ganganagar, Churu and Jhunjhunu Districts. (b) Gurgaon District. (b) Alwar and Bharatpur Districts. (c) Firozepur District. (c) Gangapur District. (d) Mahendragarh District. (d) Sikar, Jhunjhunu and Alwar Districts. 2. Staff of the Excise Intelligence Bureau not below the rank of Excise Sub-Inspector and Police Sub-Inspector. Ganganagar, Churu, Alwar, Sikar, Jhunjhunu and Bharatpur Districts." Under the notification No. D.67/4/58.F.37(i) S.R./53-11 dated 18 2-60 extracted above, the Police Sub-Inspector has been invested with the powers of Excise Officer under section 10 of the Excise Act. The Sub Inspector of Police was therefore, competent to file the complaint under section 67 of the Act and the Magistrate could lawfully take cognizance on such a complaint. The learned Magistrate has erred in holding that the cognizance could not be taken upon a complaint made by Police Sub Inspector on the basis of the authority reported in State of Rajasthan vs. Bana (l). The learned Magistrate has not taken care to read that case carefully. In that case the complaint was filed by one Tejraj Officer Incharge, Government Railway Police Station Jodhpur. As Tejraj was admittedly not a Police Sub-Inspector, cognizance on his complaint was not tenable in law. It was on this reason that this Court held that the learned Magistrate could not have taken cognizance on the complaint filed by Tejraj. That case is clearly distinguishable In the case before me the complaint purports to have been filed by the Police Sub-Inspector. This fact has also not been disputed in the order of the learned Magistrate. He has dropped the proceedings on the assumption that the Sub-Inspector of Police was not competent to file a complaint under section 67 as he was not an Excise Officer. As stated earlier, the Sub Inspectors of Police were invested with the powers and functions of the Excise Officer in the notification dated 18-2-60. The Sub Inspector of Police was, therefore, competent to file the complaint. The order of the learned Magistrate is, therefore, wholly erroneous and cannot be sustained in law and has to be quashed.