LAZAR FERNANDO Vs. AMIRTHAM FERNANDO

JUDGEMENT

(1.) In this case the complainant, a brother of the accused, has laid his complaint in the Court of the Sub-Magistrate of Tuticorin under Section 55 of the Abkari Act and Section 9(c) and (d) of the Opium Act. The story is very shortly, that the accused was seen by the complainant and others going down towards the shore, where it is said he had a boat ready to ship ganja and opium on board a vessel that was lying at the port of Tuticorin. The complainant and his party are said to have arrested the accused. The former informed the Sub-Inspector who arrived with two constables at about 1 o clock in the morning and to whom the accused, who is said to have had a sack with him, was handed over by the complainant and his party. Objection was taken that the provisions of both the Abkari and the Opium Acts prohibit prosecution by private individuals and that, therefore, the complainant had no locus slandi to institute these proceedings as the police refused to interfere and referred the case as false, apparently believing that the accused was beaten by the prosecution witnesses and the bundle of exciseable goods was foisted upon him while drunk, the prosecution witnesses as well as the accused being, in the opinion of the police, notorious smugglers.

(2.) Now the question is whether there is any right of private complaint under these two Acts. As regards the Abkari Act, Madras Act I of 1886, there is a long series of Secs.in Chap. VIII headed "Powers and Duties of Officers, etc." For instance, certain Abkari and Police officers may search and arrest ( Section 31), or enter and inspect premises ( Section 32), and the Collector or Magistrate may on information issue a warrant to search ( Section 30), any officer of the Abkari, Salt, Police, Land Revenue or Customs Departments or any other person duly empowered may arrest ( Section 34). By all these Secs.there is provided a special procedure, e.g., a preliminary enquiry before an Abkari Inspector who may summon witnesses

(3.) ( Section 40 following). The Abkari Inspector may forward a person in custody to a Magistrate and his report is to be treated as a complaint ( Section 50). Throughout the Act there is no mention of any private person having power to arrest. In fact, several Sections provide that the person who is to take action should be not below a certain rank. Here there was of course no complaint by an Abkari Officer under Section 50. We have the authority of a Bench of this Court in Kuppuswami Naidu, In re (1922) 44 M.LJ. 231 to the effect that, on an abkari offence, if a charge sheet is put in under the ordinary police procedure, the proceedings are not properly instituted, because they are not in accordance with the procedure to which I have referred contained in the Abkari Act. The learned Judges held that the accused person has the right to a special procedure regulating the course of the investigation and that, he having been denied this special procedure, he was placed under a considerable disability. They also held that the matter is governed by the provisions of the Abkari Act read with Section 5 (2) of the Criminal Procedure Code, adding that there is a much more formal enquiry laid down under the Act than is laid down under the Criminal Procedure Code. The case in Lakshmi Narasayya V/s. Narasimhachari (1913) 25 M.L.J. 577 may also be referred to. That was an insolvency offence specially provided for by the Presidency Towns Insolvency Act. It was there held that, as the offence is created by that Act and the Insolvency Court was constituted into a special tribunal to try that offence with a special procedure, the ordinary Criminal Procedure Code was not applicable. I think, therefore, there is no doubt that under the Abkari Act the proceedings must be initiated and conducted under the elaborate rules contained in the chapter and Secs.of the Act to which I have referred. It is obvious that that was not done in the present case.