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Allahabad High Court · body

1964 DIGILAW 325 (ALL)

State of U. P. v. Govindi

1964-10-01

M.H.BEG

body1964
ORDER M.H. Beg, J. - This is an appeal by the State against the acquittal of a woman called Govindi resident of Kalsi within police station Chakrata in Dehradun and a man called Mukundi from charges u/s 60, UP Exise Act. It is alleged that Govindi was caught selling illicit liquor to Mukundi and hence both were charged. 2. Among the objections taken on behalf of the accused in the court of the SDM Dehradun, where they were tried, was one relating to the powers of the Head Constable Babu Ram (PW 3), who caught Smt. Govindi selling liquor to Mukundi, to enter the premises and to arrest the accused at the place where the illicit liquor was being sold. The trying Magistrate held: I have gone through the relevant Section 48 (et seq) of the Excise Act and find that a police officer below the rank of a Station Officer incharge of a police station it not empowered to effect a search or to inspect the place of sale of liquor without warrant of a Magistrate or District Magistrate. Head Constable Babu Ram was certainly not the S.O. Chakrata. As such the inspection by Head Constable Babu Ram was illegal. I may observe that the way in which the learned Magistrate has dealt with the provisions of the UP Excise Act (hereinafter referred to as the Act) shows that he did not take the trouble of studying or trying to understand the provisions of the Act properly. As such the inspection by Head Constable Babu Ram was illegal. I may observe that the way in which the learned Magistrate has dealt with the provisions of the UP Excise Act (hereinafter referred to as the Act) shows that he did not take the trouble of studying or trying to understand the provisions of the Act properly. Section 48, upon which the learned Magistrate has relied, merely deals with the powers of inspection which are conferred upon "The Excise Commissioner, or a Collector, or any officer of the Excise Department not below such rank as the State Government may prescribe, or any police officer duly empowered in that behalf." Such officer "may enter and inspect, at any lime by day or by night, any place in which any licensed manufacturer carries on the manufacture of or stores any intoxicant and may enter and inspect, at any time, within the hours during which sale is permitted, and any other time during which the same may be open, any place in which any intoxicant is kept for sale by any licensed person, and may examine, test, measure, or weigh any materials, stills, utensils, implements, apparatus, or intoxicant found in such place and may seize any measure, weights, or testing instruments which he has reason to believe to be false," 3. A perusal of Section 48 conveys its obvious intention which is to confine the power of an entry for purposes of an inspection contemplated by the section to the officers specified therein. It does not apply to an entry of the premises for the purpose of making aa arrest and seizing an intoxicant or other articles when the offence is being or has been committed before the very eyes of a police officer as in the case before me. The entry in the present case was apparently into a part of a house adjoining the road so exposed that every one could see what was going on in it. The entry was neither for purposes of an inspection nor for the purposes of searching any premises, but only for making the arrest and for the seizure of the intoxicant. 4. The entry was neither for purposes of an inspection nor for the purposes of searching any premises, but only for making the arrest and for the seizure of the intoxicant. 4. The provisions of Chapter IX of the UP Excise Act, other than Sections 48 and 50 of the UP Excise Act, deal with the powers of investigation, of issuing search warrant of premises, and the connected procedure, and these provisions are not relevant here, This was not a case of either a search of premises or of entry of the premises of Smt. Govindi for any object except that of making an arrest for the offence which she was seen to have committed in front of the Head Constable and the witnesses. Therefore, Section 48 and other sections except Section 50 of Chapter IX of the Act, were inapplicable/ 5. Reliance was placed on behalf of the State on Section 50 of the UP Excise Act which runs as follows: Any officer of the excise, police, salt, opium or land revenue department, not below such rank and subject to such restrictions as the State Government may prescribe any other person duly empowered in this behalf, may arrest without warrant, any person, found committing an offence u/s 60, Section 62, Section 63 or Section 65; and may seize and detain any intoxicant or other article which he has reason to believe to be liable to confiscation under this Act or other law for the time being in force relating to excise revenue and may detain and search any person upon whom and any vesel, vehicle, animal, package, receptable or covering in or upon which he may have reasonable cause to suspect any such article to be. It is clear that Section 50 of the Act contemplates that only some person duly authorised to arrest and seize will effect the arrest of the offending individual and make any seizure. In order that a person may be duly authorised u/s 50, UP Excise Act, it has to be shown that the State Government has prescribed the rank below which the officer concerned did not fail, or, in the alternative, the person arresting or seizing any article must be "a person duly empowered in this behalf." In the present case, the arrest was made by the Head Constable without any warrant fro n a Magistrate. He was not, therefore, a person "duly empowered in this behalf" by means of a warrant. He could come within the category of officers authorised if the State Government had empowered officers of his rank to exercise powers u/s 50 of the Act. 6. My attention was invited to the UP Excise Manual Vol. I (1st Edition), 1962, published under the authority of the UP Government which contains paragraph 53 at page 48 giving the powers conferred by the State Government upon various officers by notifications under the provisions of the Act. Notification No. 81/XII92 dated 18.2.1931 mentions the powers conferred u/s 50 of the Act upon the following officers: (a) all officers of the Excise, Salt, Opium or Land Revenue Departments and all police officers including the provincial chaukidari force, town, village and road chaukidars, powers of arrest, seizure and detention in respect of offences punishable u/s 60(a), (g)or(j). (b) All officers of the Excise, Salt, Opium or Land Revenue Department in receipt of a salary of over 20 rupees a month, all police officers incharge of stations, and police officers of or above the rank of Sub Inspector, similar powers in respect of offences punishable u/s 60(b), (c), (d), (f) or (i), or u/s 62 or 63. 7. The abovementioned notification shows that police officers in general including Head Constable, have been authorised to exercise the powers of arrest and seizure, given by Section 50 of the Act, only with regard to the offences punishable u/s 60(a) or (g) or (J) and only officers incharge of police stations and police officers of or above the rank of a Sub Inspector are empowered to exercise the powers of arrest and seizure in respect of offences punishable u/s 60(b) or (c) or (d) or (f) or (i). Now, the offence of selling an intoxicant in contravention of the Act or the Rules framed thereunder is punishable only u/s 60(1) of the Act, and it appears that the purchase of an intoxicant per se is not punishable at all as an offence u/s 60 of the Act, although, in certain cases, it is conceivable that buyer may be punishable as an abettor. The offence of possession, of import or export, or transport of an intoxicant contrary to the provisions of the Act or Rules framed thereunder is punishable u/s 60 (a) of the Act. 8. The offence of possession, of import or export, or transport of an intoxicant contrary to the provisions of the Act or Rules framed thereunder is punishable u/s 60 (a) of the Act. 8. In the present case, both the Respondents have been tried for an offence u/s 60(1) of the Act and not for an offence u/s 60(a) of the Act at all. It is true that no formal charge is framed for an offence u/s 60 of the Act inasmuch as the summons case procedure is followed because the maximum punishment prescribed is one year's imprisonment. Nevertheless, when a trial has taken place for an offence u/s 60(i) of the Act, the ingredients of which are different from those of the offence u/s 60(a) of the Act, it is not fair to convict an accused person of the offence u/s 60 (a) of the Act when the factual ingredients of that offence were not put to the accused either u/s 212, Code of Criminal Procedure or u/s 342, Code of Criminal Procedure. The accused persons may have a separate defence to offer if informed that the charge is for possession of illicit liquor against the provisions of the Act or of some rule made thereunder. It appears from the statement of Smt. Govindi, to whom only the charge for selling the intoxicant to Mukandi and some others was put, that her husband was also living with her in the same quarters but was away at that time. If she had realised that the charge was for possession of liquor contrary to law, she may have been able to show that the possession was really that of the husband on whose behalf she may have been acting. In my opinion, the sale of an intoxicant, contrary to the provisions of law, is an offence independently of its possession contrary to the provisions of the Act or the rules framed thereunder. 9. It was argued that possession of an intoxicant is involved in selling it and, therefore, possession of the intoxicant is a minor offence in relation to the offence of selling it and included within it. 9. It was argued that possession of an intoxicant is involved in selling it and, therefore, possession of the intoxicant is a minor offence in relation to the offence of selling it and included within it. Such an argument overlooks that, although mere physical possession may be with the person selling it, the offence which is punishable u/s 60(a) of the Act is that of possession of an intoxicant contrary to the provisions of the Act and the rules framed thereunder. Paragraphs 678 and 679 of the Excise Manual, contain special Rule 16 and 17, relating to possession of denatured spirit. It may also be pointed out that Section 7 of the Act lays down: When any intoxicant is in the possession of a person's wife, clerk or servant on account of that person, it shall, for purposes of this Act, be deemed to be in the possession of that person. It is only when possession of an intoxicant is "in contravention of this Act or of any rule or order made under this Act, or of any licence, permit or pass obtained under this Act" (Section 60 of the Act) that the possession of the intoxicant becomes an offence punishable under the Act. Thus, mere physical possession of an intoxicant is not an offence under the Act. 10. It was also argued that Section 246, Code of Criminal Procedure would enable the court to convict the accused of the offence proved even if the complaint or summons was with regard to another offence. This argument overlooks the fact that no offence of possession of an intoxicant contrary to the provisions of the Act or any rule or order made thereunder was either disclosed by the evidence or put to the accused persons. Section 246, Code of Criminal Procedure operates subject to two limitations: firstly, that the offence of which an accused is to be convicted is apparent either from admitted or proved facts; and, secondly, that the substance of the accusation has been put to the accused u/s 242 or Section 342, Code of Criminal Procedure, so that the accused has had an adequate opportunity to make any defence which may be available against the accusation. Upon the findings recorded by me above, Section 246, Code of Criminal Procedure was not applicable in this case. 11. Upon the findings recorded by me above, Section 246, Code of Criminal Procedure was not applicable in this case. 11. Proceeding on the assumption that the trial was for an offence u/s 60(i) of the Act only, it will be seen that the relevant notification conferring powers of arrest and seizure for an offence u/s 60(i) of the Act confines these powers to police officers incharge of police stations and to officers of the rank of the Sub Inspector and above so far as police officers are concerned. Officers of the Excise, Salt, Opium or Land Revenue Departments, who receive salaries of over Rs. 20/- per month are placed, for some unexplained reason, in the same class as police officers incharge of stations and police officers of the rank of and above a Sub-Inspector. It may be that the rule making authority did not place sufficient reliance upon police officers below the specified rank or category and considered it unsafe, in public interest, to entrust such powers, which can be easily abused, upon police officers occupying less responsible positions in the police force, whereas officers of other departments were considered sufficiently reliable if they received salaries of more than Rs. 20/- per month. I am not concerned here with the wisdom or expediency, or justice of the rule. The rule, as it stands, has" to be given effect. Thus, the Head Constable did not have the power to arrest the Respondent or seize the alleged intoxicant or its receptacles under the provisions of Section 50 of the Act. The consequence of this finding necessarily is that whatever steps the Head Constable took, such as the arrest of the accused and the seizure of the intoxicant and its receptacles, and preparation of the recovery memo after the arrest, were null and void in the eye of law and had to be ignored. 12. It was argued on behalf of the State that the learned Magistrate considered -only the evidence of one witness of seizure of illicit liquor (i.e. Jogram PW 2) but did not consider the evidence of Ram Singh (PW 1), a shop keeper of Kalsi. 12. It was argued on behalf of the State that the learned Magistrate considered -only the evidence of one witness of seizure of illicit liquor (i.e. Jogram PW 2) but did not consider the evidence of Ram Singh (PW 1), a shop keeper of Kalsi. It was urged on behalf of the Respondents that there were contradictions between the statements of Ram Singh (PW 1) and Jogram (PW 2) and Babu Ram (PW 3) and that the prosecution of the Respondent Smt. Govindi was a result of the complaint made by Smt. Govindi against the police officers of Kalsi out post. It is not necessary for me to consider these questions as the evidence of all the three witnesses mentioned above relates to the arrest of the accused and seizure of an intoxicant from the house of Smt. Govindi on the allegation that she had committed an offence u/s 60(i) of the Act. As already observed by me, the whole evidence has to be disregarded in view of the prohibition contained in the law, as it stands in this State today, against the arrest of the alleged offender and the seizure of any intoxicant or other object by an officer below the specified rank. 13. Chapter IX of the Act exhausts the whole set of powers of arrest and seizure and mentions the procedure to be followed in such cases, including the applicable provisions of the Code of Criminal Procedure. The powers and procedure provided by Chapter IX of the Act lay down the mode of arrest and seizure which the law permits. The principle laid down by the Privy Council in Nazir Ahmad v. Emperor (1) (1936 AWR 620 ) at p. 62o is: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 14. There is no evidence upon the record that Head Constable Babu Ram was actually incharge of a police station at the time when he made the arrest and seized the alleged intoxicant and its receptacles. Hence, he could not have taken the steps which he took. Provisions of law prohibiting arrest and seizure in any mode other than the one, law permits would be defeated indirectly if the results of the interdicted action could be used to convict an accused person. Hence, he could not have taken the steps which he took. Provisions of law prohibiting arrest and seizure in any mode other than the one, law permits would be defeated indirectly if the results of the interdicted action could be used to convict an accused person. And, if the evidence of arrest and seizure of the intoxicant from Smt. Govindi is excluded, the bottom is knocked out of the prosecution case. For the reasons given above, I hereby dismiss this appeal.