FAKIR MAHAMMAD Vs. EMPEROR

JUDGEMENT

(1.) IN these two cases the two accused have been convicted under Section 54 (b), Bengal Excise Act, 1909, for keeping a licensed premises open after hours. The proceedings arose out of searches by the police during which no excise officer was present. The matters were reported to the Collector of Excise who wrote to the Deputy Commissioner of Police, North District, on 24 November 1989, saying that he sanctioned the prosecution of the two accused and that he authorized an officer of the police department to investigate the cases and to submit a report to the Magistrate under Section 83 (b) of the said Act. The accused in each case have been fined Rs. 60. These rules have been issued on the ground that there has been no complaint or report by the Collector of Excise or any excise officer authorized by him as required by Section 83 (b), Excise Act, and. that therefore the police Magistrate who tried the cases had no jurisdiction to take cognizance of the offences and the entire proceedings are wholly ultra vires.

(2.) IN my opinion the rules must be made absolute. It appears that the Magistrate took cognizance in each case on a challan submitted by the INspector of Police, Belighatta police station. He never saw the letter of the Collector of Excise dated 24 November until this was exhibited in the proceedings in the following February. Even if by any stretch it could be contended that this letter amounted in itself to a complaint or report as described in Section 83 (b), Excise Act, it is quite certain that the trying Magistrate did not take cognizance on such complaint or report. It cannot be said that the police officer who filed the challan of which cognizance was taken answers to the description required by Section 83, namely "an excise officer authorized by the Collector in this be-half." IN the circumstances I must hold that the whole proceedings in each of the cases are void. The convictions and sentences are therefore set aside. It. will be open to the excise department to proceed properly according to law if they are so advised.