JUDGMENT 1. IN this Rule obtained by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, on behalf of the State of West Bengal, the question for decision is whether it is open to a Magistrate trying a case under section 74 of the Bengal Excise Act to direct the police to make over to the accused before the commencement of the trial, a copy of the report in regard to a charge under sub-section (1) and of the First Information Report under section 154 and all other documents or relevant extracts thereof on which the prosecution proposes to rely according to the requirements of section 173 (4), Cr. P. C. Mr. Roy, appearing on behalf of the State, contends that as this was not an investigation under Chapter 14, Cr. P. C, and as section 173 is not one of the sections mentioned in section 74 (1) of the Bengal Excise Act and further as in a summons case there its no provision at all which empowers the Magistrate to direct the police to furnish such copies etc., as there is in section 251a (A), Cr. P. C, occurring in the chapter dealing with warrant cases the learned Magistrate was not entitled to make the order, he actually made in this case, namely, directing the police to make over certain papers or copies to the accused. 2. AS there is no appearance on the other side, we asked Mr. Mukherjee to argue the matter as an amicus curiae and he very kindly agreed to do so and did so with considerable ability. Section 74 (1) of the Bengal Excise Act provides that a Collector or an Excise Officer empowered under section 73 (2) may investigate all or any specified class of offences punish ale under the Bengal Excise Act, may exercise any of the powers conferred upon a police officer making an investigation, or upon an officer-in-charge of a police-station, by sections 160 to 171, Cr. P. C, 1898, and as regards the offence punishable under sections 46, 48, 52 or 53 of this Act, any of the powers conferred upon a Police Officer in respect of cognizable offences by the first clause of sub-section (1) of section 54 and by section 56 of the said Code and the said portions of the said Code shall apply, accordingly, subject to any restrictions or modifications prescribed by the Provincial Government by rule made under section 85 (2) clause (0 ). 3. THEN sub-section (3) of section 74 of the said Act provides that for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an Excise Officer empowered under section 73, sub-section (2), is appointed shall be deemed to be a police-station and such officer shall be deemed to be the officer-in-charge of such station. Then sub-section (4) provides that as soon as an investigation by a Collector or by an Excise Officer empowered under section 73 (2) has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate the investigating officer, unless he proceeds under sub-section (2) of this section or under section 65 of this Act, shall submit a report (which shall, for the purpose of section 190 of the Code of Criminal Procedure, 1898, be deemed to be a police report) to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on police reports. Mr. Roy on the basis of this section, argues that in view of this provision the investigation of an offence under the Bengal Excise Act, by an Excise Officer becomes an investigation under the Bengal Excise Act itself, although in course of such investigation certain powers conferred by sections 160 to 171, Cr. P. C. and certain other powers of the Code are exercisable by such officers and as there is no mention anywhere in section 74 that section 173 (4) of the Code will have an application, it is not possible for the court to read into section 74, the provisions of section 173 or to say that the investigation is an investigation under Chapter 14, Cr. P. C. At first sight, Mr. P. C. At first sight, Mr. Roy's contention appears to be quite correct but then on a clear scrutiny of section 74, it is clear that section 74 is concerned with the powers, exercisable by the Excise Officer investigating offences under the Bengal Excise Act and it is not concerned with the duty of the Excise Officer or for the matter of that, duty of the court to the accused, after it has submitted under section 74 (4), a report at the conclusion of the investigation. 4. WHAT section 173 (4) and section 251 (A), seek to ensure is merely the fairness of a trial by providing an accused person with papers that might give him sufficient information as to the nature of the material against him so as to enable him to make a proper defence. One should have expected of course that with the recent amendment of Code of Criminal Procedure which has brought section 173 (4) as well as section 251 (A) (1) into being necessary amendments should have been made of the provisions of section 74 of the Bengal Excise Act also but even though such amendments have not been made, the question arises whether it is open to the Magistrate to make the order directing the police to make over necessary papers to the accused as specified under section 173 (4 ). Section 74 (3) under which the area for which an Excise Officer is appointed under section 73 (2) becomes a police-station and the officer himself becomes the officer-in-charge of such station may have been introduced, as Mr. Roy points out, just in order that section 156 (2 ). Cr. P. C, which would not otherwise be applicable might be applicable but of course even then one does not understand why instead of mentioning section 156 (2), the whole of section 156 has been mentioned here. The Excise Officer investigating an offence in the Excise Act has already been given certain powers which the Code confers upon an officer-in-charge of a police-station and it is difficult to understand why sub-section (3) had to be introduced at all for the whole of section 156 Cr. P. C, when the first and third sub-sections of that section provide for the investigation of a cognizable case by an officer-in-charge of a police-station and for a Magistrate empowered under section 190, ordering such investigation. 5. MR. P. C, when the first and third sub-sections of that section provide for the investigation of a cognizable case by an officer-in-charge of a police-station and for a Magistrate empowered under section 190, ordering such investigation. 5. MR. Mukherjee brought to our notice section 67 (a) which authorises any officer of the police and officers of the Excise and Salt, Customs etc., to arrest without warrant any person found committing an offence punishable under sections. 46, 48, 52 or 53 and he argued that the police could take cognizance of offences under the Bengal Excise Act, so that these become cognizable offences but then on a close examination of this provision it appears that the police can arrest without warrant only when a person is committing the specified offences in his view or when he sees a person committing such offence and not otherwise. Mr. Roy also points out before us section 83 of the Bengal Excise Act under which a Magistrate can take cognizance of an offence under this Act, only on his own knowledge or suspicion or on the complaint or report of an Excise Officer or an officer empowered in this behalf by the Provincial Government or on the complaint or report of the Collector or an Excise Officer authorised by the Collector in this behalf. That shows that an officer-in-charge of a police-station as such is not entitled to take cognizance of an offence under Excise Act nor is he entitled to submit a report to a Magistrate on which cognizance of such an offence may be taken. That being so, as the provisions of the Bengal Excise Act is not really an investigation under Chapter 14, Cr. P. C. although some of the powers exercisable by a police officer-in-charge of a police-station in investigating a case under that Chapter are exercisable by an Excise Officer investigating an offence under the Act. That being so, as the provisions of the Bengal Excise Act is not really an investigation under Chapter 14, Cr. P. C. although some of the powers exercisable by a police officer-in-charge of a police-station in investigating a case under that Chapter are exercisable by an Excise Officer investigating an offence under the Act. In the Opium Act, no reference is made to any provision of the Code of Criminal Procedure but powers akin to those conferred upon a police officer-in-charge of a police station under Chapter 14 of the Code have been conferred on officers investigating a case under the Opium Act and it has been held in the case of (1) Premchand Khetry v. The State, (1) reported in 62 C. W. N. 198 that section 251-A of the Code is not so designed as to be applicable to a case of an offence or offences under the Opium Act instituted on a report by an Excise Officer and both sections 207a and 251a, Cr. P. C. contemplate that there has been a report by the police under section 173, that is, a report of a cognizable offence or non-cognizable offence which can be directed by a competent Magistrate to investigate, made after investigation under Chapter 14. 6. STRICTLY speaking, therefore, without an amendment of section 74 of the Bengal Excise Act, consequential on the recent amendments of the Code of Criminal Procedure, section 173 (4) Cr. P. C. cannot be said to be strictly applicable to a case investigated by an Excise Officer under the provisions of section 74 of the Bengal Excise Act so that it will not be open to the learned Magistrate to make the order which he actually made requiring the Excise Officer concerned to make over to the accused certain papers but then in view of the fact that he has already made an order and that the order would serve to ensure a fair trial we are not inclined to interfere with the order in revision. The Rule must accordingly be discharged. Before I part with this case I must point out that before filing this revisional petition before us the trial court's record was requisitioned by the Legal Remembrancer and it was actually produced before us by Mr. Roy on the day when he moved us and obtained a Rule. The Rule must accordingly be discharged. Before I part with this case I must point out that before filing this revisional petition before us the trial court's record was requisitioned by the Legal Remembrancer and it was actually produced before us by Mr. Roy on the day when he moved us and obtained a Rule. It struck me at once how he could requisition the record of a pending case without actually forcing the learned Magistrate to keep the case pending till the return of the record by him and we asked Mr. Roy to explain. The only explanation he could give is that this was the practice followed by the Legal Remembrancer. The rules in the Legal Remembrancer's Manual which govern appeals by the State against orders of acquittal under section 417, Cr. P. C, and which thus relate only to records of cases disposed of have nothing whatever to do with the records of pending cases. As a matter of fact if it is correct that such a practice of calling for and detaining the records of pending cases has really grown up, the sooner it is abandoned the better for the simple reason that without meaning it, the Legal Remembrancer might unduly interfere with the proceedings in Court and thereby make himself liable for contempt.