Judgment The relevant facts seem to be as follows: The Superintendent of Excise, Burdwan, called upon one Probhat Kumar Saha and Satyaranjan Banerjee to explain why their excise licence should not be cancelled under S. 42 of the Bengal Excise Act, 1909 or why they should not be otherwise punished, as arrival of certain consignments of foreign liquor in the excise shop belonging to them was not reported to the excise authorities. On the March 23, 1973 the Superintendent of Excise called upon them to pay Rs.1000/- by way of composition of the offence under S. 65 of the Bengal Excise Act in lieu of cancellation or suspension of licence. The money was to be paid by March 28, 1973. As the money was not paid by the same date on March 29, 1973 the Superintendent of Excise directed the C.S.I. to start prosecution against the petitioners. On March 30, 1973 Criminal Case No. 330 of 1973 was filed in the Court of Sub-Divisional Judicial Magistrate against the petitioners and orders were passed for issue of summons under S. 46(a) of the Bengal Excise Act read with S. 54(B) and (C) thereof. It, however, appears that the Additional District Magistrate, Burdwan, on an appeal made by the petitioners passed an order on March 29, 1973 staying realisation of the composition money and the same was also communicated to the Superintendent of Excise on March 29, 1973. The petitioners filed an application before the learned Sub-Divisional Judicial Magistrate for discharge under S. 253(2) of the Criminal Procedure Code, but the prayer was disallowed on the ground, inter alia, that the composition was a departmental action, but the prosecution was not barred under S. 43 of the Code of Criminal Procedure. Being aggrieved the petitioners presented an application under Ss. 435 and 438 of the Code Criminal Procedure praying that a reference should be made to the High Court with recommendations. Upon that the present reference was made by the learned Additional Sessions Judge, 1st Court, Burdwan. 2. It was argued on behalf of the petitioners that in terms of S. 65(2) of the Bengal Excise Act it was open to the petitioners to make payment until their appeal was rejected by the Collector. Upon that the present reference was made by the learned Additional Sessions Judge, 1st Court, Burdwan. 2. It was argued on behalf of the petitioners that in terms of S. 65(2) of the Bengal Excise Act it was open to the petitioners to make payment until their appeal was rejected by the Collector. The said S. 65 is as follows: "(1) The Collector, or any Excise Officer (not below the rank of Inspector of Excise, authorised by the Collector by general or special order in this behalf).- (a) may accept from any person whose licence, permit or pass is liable to be cancelled or suspended under clause (a), clause (b) or clause (c) of (sub-section (1) of section 42), or who is reasonably suspected of having committed an offence punishable under (any section of this Act other than section 58), payment of a sum of money, not exceeding (one thousand) rupees, in lieu of such cancellation or suspension or by way of composition for such offence, as the case may be ; and (b) in any case in which any property has been seized as being liable to confiscation under Section 63, may, at any time (before the case is lodged before the Magistrate), release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer. (2) When the payment referred to in sub-section (1) have been duly made, the accused person, if in custody, shall be discharged, and the property seized (if any) shall be released; and no further proceedings shall be taken against such person or property." In terms of the said sub-s. 65(2) upon payment the accused person even, if in custody, shall be discharged. 3. Mr. Chakraborty, the learned Advocate appearing on behalf of the State, however, argued that the said sub-section constitutes a bar to prosecution only in case of actual payment being made. So long as the payment was not made there was no bar to prosecution under the said sub-section. It is true sub-s. (1) authorises the Collector or any excise officer to compound an offence and to realise the property liable to confiscation, but that does not prevent prosecution being launched when the composition money is not paid. 4. It is difficult to accept Mr. Chakraborty's, contention. It is true sub-s. (1) authorises the Collector or any excise officer to compound an offence and to realise the property liable to confiscation, but that does not prevent prosecution being launched when the composition money is not paid. 4. It is difficult to accept Mr. Chakraborty's, contention. Before the prosecution was initiated the question of composition was pending before the Collector who had made an order of stay. The order of stay clearly contemplates a restraint on the subordinate officers to take any further action until the appeal itself was disposed of. 5. The offence involved in this case is apparently one under S. 46(a). The same can be dealt with in two ways under the Bengal Excise Act, 1909 (Bengal Act V of 1909). It could either be compounded or prosecution might ensue. The excise authorities were given two options. Having elected to initiate proceedings for composition it was not open to them simultaneously to launch prosecution. It is only when the steps for composition was exhausted and failed, it would be oven for them to prosecute the petitioners. 6. An argument raised was in terms of Article 20(2) of the Constitution of India, but the same has hardly any application. The said provision clearly states that no person shall be prosecuted or punished for the same offence more than once. The compounding of the offence by the department was not a prosecution and a question of second prosecution, therefore, does not arise but the point was not pressed later on and it need not be gone into at any length. It was, also, argued that even if the Superintendent of Excise was bound departmentally by the order of stay passed by the Collector the same did not in any way bind the criminal court. There was no obligation on the part of the court to stay its hands in view of the departmental proceedings. It was, also, argued that even if the Superintendent of Excise was bound departmentally by the order of stay passed by the Collector the same did not in any way bind the criminal court. There was no obligation on the part of the court to stay its hands in view of the departmental proceedings. It, however, appears that such an argument is not at all open in view of the clear provisions of Rule 254 sub-rule (5) which, inter alia, provides that the offender has the option either of compounding the money or of having his licence cancelled or being prosecuted, and that the term 'fine' should not be used in connection with cases compounded under S. 65." The said rule makes it clear that it was not the option of the department either to compound or to prosecute or if possible simultaneously proceed with both, but the option belonged to the offender who could either compound or be prosecuted. The rule is a statutory one made by virtue of S. 86 of the Bengal Excise Act. In view of the same the contention raised by Mr. Chakraborty on behalf of the State cannot be accepted. 7. Again, when the departments had opted for composition and this order of stay was pending it was more or less a representation by conduct that the department would proceed on that basis. It would not be open in such a context for the department to go back upon its conduct and suddenly prosecute the accused. In view of what is stated above the reference is accepted. Let the order dated July 16, 1973 passed by the Sub-Divisional Magistrate, Burdwan in Criminal Case No. 390 of 1973 be set aside. Reference accepted. Order set aside.