PROKASH CHANDRA KUNDU Vs. EMPEROR

JUDGEMENT

(1.) This was a Rule calling on the District Magistrate of Hooghly to show cause why the conviction and sentence passed on the petitioners should not be set aside or otherwise modified as to this Court may seem good on the grounds, first, that there having been no search in accordance with the provisions of the law, and the excise officers not having observed any of the formalities required by law, the resistance offered to them was not unlawful, and the conviction under Section 147 is bad in law; and, secondly, that the excise officers were not acting in the exercise of their duty, and the conviction under Section 353 of the Indian Penal Code is, therefore, bad in law.

(2.) We have had the provisions of both the Excise Acts, of 1878 and the present Act V of 1909 (B.C.) laid before us, and we find that the provisions of the new Act are substantially the same as that of the old, but are stated with much greater clearness and in much greater detail. We may remark that in one particular, with which we are specially concerned in this case, Section 67 gives wider powers to excise officers than any powers that were given to them by the Act of 1878. Section 67 says: "any officer of the excise" which would include a peon, "may, subject to any restrictions prescribed; by the Local Government by rules made under Section 85, arrest without warrant any person found committing an offence punishable under Section 46," and for the present we need not concern ourselves with Sections 68, 69 and 70 which prescribe a formal procedure upon information "to the Collector, to any Collector or Magistrate, or to a Collector or excise officer not below such rank as the Local Government by notification may prescribe."

(3.) What is stated in this case is that the Deputy Inspector of Excise had information that he would find certain persons in the act of illicitly distilling liquor if he went to this village. He accordingly went with two sub-inspectors and a large number of peons, who from the finding actually saw the appellants and their men removing the distilling apparatus, which the Magistrate found they probably afterwards destroyed, as no traces of it have been found. But before they had time to eater the house and arrest these persons or to make any search whatever, the accused sallied out and proceeded to beat the peons, The unlawful assembly was joined by two men of higher rank, Prokash Chandra Kundu and Basanta Bhattacharjee, and the finding is clear that these two men were actually found taking part in the rioting. But as regards the accused Basanta, the first Court held that, inasmuch as he did not take any active part in the assault, he might be absolved from the charge under Section 353, which was a separate substantive charge and not raised by implication under Section 149.