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1985 DIGILAW 358 (CAL)

KAMALA PRASAD v. STATE

1985-09-05

M.K.MUKHERJEE, SANKAR BHATTACHARYYA

body1985
M. K. MUKHERJEE, SANKAR BHATTACHARYYA ( 1 ) IN the night between March 1 and March 2, 1985 the Inspector-in-charge of Siliguri Police Station intercepted a truck bearing registration No. WGV 5669 near Sevoke Police Post and recovered 131 caroms of Bhutan made foreign liquor there from. As the six occupants of the trucks including the driver, failed to produce any license or authority to carry the liquor the Inspector-in-charge sized the liquor and the truck under a proper seizure list and arrested all the occupants. Thereafter, on March 3, 1985 he forwarded the arrested persons together with a report to the Sub-divisional Judicial Magistrate, Siliguri. ( 2 ) ON March 9, 1985 Sri Kamala Prosad, the petitioner herein, claiming himself to be the owner of the truck filed an application before the Sub Divisional Judicial Magistrate, Siliguri praying for return of the truck. The learned Magistrate rejected the application and aggrieved thereby the petitioner filed an application in revision before the learned sessions Judge, Darjeeling who directed return of the truck to the owner on a bond to the satisfaction of the Sub-Divisional Judicial Magistrate, Siliguri. In terms of the said order the petitioner furnished a bond before the learned Sub-divisional Judicial Magistrate, Siliguri for acceptance but he refused to accept it as it was brought to his notice by the Excise Department that the petitioner was not the registered owner of the vehicle. ( 3 ) AGEIST such rejection the petitioner moved an application in revision in this Court and after hearing the learned Advocates appearing for the State and the petitioner, this Court disposed of application on May 2, 1985 directing the learned Sub-Divisional Judicial magistrate, Siliguri to enquire as to whether the claim of the petitioner that he purchased the vehicle from its registered owner was genuine or not and to return the vehicle to the petitioner if the claim was genuine. ( 4 ) THEREAFTER on June 12, 1985, an application was filed on behalf of the State praying for modification of the earlier order of this Court dated May 2, 1985 on the ground that at the time the revision application filed by the petitioner was held and disposed of by the said order it was not brought to the notice of this Court that on March 6, 1985 a competent authority had passed an order under S. 78 (2) of the Bengal Excise Act 1909 ('act' for shirt) regarding custody of the truck in question and the said order was still in force. When the application filed by the state was taken up for hearing on July 26, 1985 in presence of the parties, this Court directed the State to show cause why the order purportedly passed under S. 78 (2) of the Act should not be set aside and in terms of the said direction the Said direction the State has shown cause. ( 5 ) IN opposing the application of the State for modification of the order dated 2. 5. 85 it has been contended on behalf of; the petitioner that the officer-on-Special Duty of the Excise. Directorate who passed the order on 6. 3. 85 was not empowered to pass any order under S. 78 (2) of the Act and consequently his order regarding custody of the truck were without jurisdiction. On the contrary, it has been submitted on behalf of the petitioner, that as the seizure of the truck by the police authority was reported to thee learned Sub-Divisional Judicial Magistrate, he had power under S. 457 of the Code of Criminal Procedure to entertain the application of the petitioner for return of the truck; and consequently on the rejection of the application by the Magistrate the Sessions Judge was competent to direction its return to the petitioner. On the other hand it has been contended on behalf of the State that the Officer-on Special Duty was duly empowered to exercise powers under S. 78 (2) of the Act and as such he could pass an order regarding custody of the vehicle and so long as the said order remained in force no order could be passed by any Court superseding the order cove the Excise authority. It has been further contended that in any view of the matter the learned Magistrate had no power to pass any order regarding the vehicle as the seizure of the truck was not reported to him entitling him to invoke S. 457 Cr. P. C. ( 6 ) TO appreciate the respective contentions of the parties it will be necessary to refer to certain facts, which admittedly were not brought to the notice of this Court by either of the parties when order of this Court dated May 2, 1985, was passed. ( 7 ) AFTER the accused perfusions were forwarded to the learned Magistrate on 3. 3. 85, Mr. Swapan Aditya, Officer-in-charge of Central detective Department (excise) Siliguri, took charge of the seized articles including the truck and the seized papers and documents from the Inspector - in-Charge of Siliguri Police station on March 4, 1985 and started investigation into the case in exercise of his powers under S. 73 (2) of the Act. Thereafter Sri Aditya forwarded a report of the aforesaid arrest and seizure to the Deputy Commissioner of Excise (Preventive), Central Detective Department, west Bengal under S. 78 (1) of the Act. As at the material time Mr. S. K. Chakraborty, Officer-on-special Duty of the Excise Directorate was exercising the powers of the Deputy Commissioner, Excise (preventive) Central Detective Department, the report was placed before Sri Chakraborty and the latter passed an order on march 6, 1985 for keeping the assisted articles, including he offending truck in Excise custodial and since twenty heartaches are in such custody. ( 8 ) TO ascertain whether the contention of the petitioner that Sri Chakraborty was not competent to pass any order under S. 78 (2) of the Act is valid or not it will be appropriate at this stage to refer to the relevant provisions of the Act and the notifications issued there under collector' has been defined in S. 2 (5) of the Act to mean - (i)in the Calcutta District, the person appointed under S. 7, sub s 2, clause (b), to exercise all the powers and to perform all the duties of the Collector in that district, and (ii)elsewhere, the chief officer in charge of the revenue administration of a district. 'excise Officer' under the Act means the Collector or any officer or other person appointed or invested with powers under S. 7 of the Act. 'excise Officer' under the Act means the Collector or any officer or other person appointed or invested with powers under S. 7 of the Act. 'excise Officer' under the Act means the Collector or any officer or other person appointed or invested with powers under S. 7 of the Act. Sub section (1) of S. 7 provides that the administration of the excise department and the collection of the exercise revenue within a district shall ordinarily be under the charge of the Collector and Sub-s (2) thereof empowers the State Government to appoint, by notifications, various officers or persons as detailed in different clauses thereof the exercise all or any of the powers under the Act. ( 9 ) SINCE the State has much relied upon clause (b) of S. 7 (2) to sustain in the competence of Sri Chakraborty to pass orders under S. 78 (2) it will be profitable to extract the said clause;" (2) The State Government may, by notification applicable to the whole of west Bengal or to any specified local area, -- (a)????????????????????????????????????? (b)appoint any person to exercise all or any of the powers and to perform all or any of the duties, conferred and imposed on a Collector by or under this Act, either concurrently with, or in subordination to, or to the exclusion of the Collector and subject to such control as the State Government may direct;" ( 10 ) THE State first relied upon a notification dated January 19, 1979 issued under the above clause whereby the Governor was pleased to appoint, amongst others, the Deputy Commissioner or Excise (preventive), Central Detective Department, to exercise the powers and perform the duties in the whale of State of West Bengal conferred and imposed on a Collector under certain sections of the Excise Act, including sub-s. (1) Of S. 73, concurrency with the Collector. ( 11 ) A similar notification was issued on January 28, 1985 appointing the Officer-in-Special Duty, Excise Directorate, West Bengal to exercise in the whole of West Bengal the powers and perform the duties conferred and imposed on a Collector under various sections of the Act, including S. 73 (1 ). ( 11 ) A similar notification was issued on January 28, 1985 appointing the Officer-in-Special Duty, Excise Directorate, West Bengal to exercise in the whole of West Bengal the powers and perform the duties conferred and imposed on a Collector under various sections of the Act, including S. 73 (1 ). On the same day on order was passed by the Governor directing Sri S. K. Chakraborty, Officer-on-Special duty, Excise Directorate to hold charge of the office of the Deputy Commissioner of excise, Preventive, C. D. D and EIB in addition to these own duties. ( 12 ) IT has to be now seen whether the above notification and order empowered Sri Chakraborty to pass orders under S. 78 (2) of the Act as contended by the State. ( 13 ) SECTION 78 of the Act, as it stood prior to its amendment by West Bengal Act XXXVIII of 1983, read as under: "78 Reports of arrests, seizures and searches-When any Excise Officer below the rank of Collector or any officer in charge of a police Station makes, or receives information of, any arrest, seizure or search under this Act, the shall, within twenty four hours thereafter, make a full report of all the particulars of the arrest, seizure or search, or the information received, to the Collector, and to the excise Officer (if any) empowered under S. 73, within the local limits of whose jurisdiction the arrest, seizure or search was made. " by the amending Act of 1983, referred to earlier, the above quoted S. 78 was e-numbered as sub-s. (1) Of that section and after sub-s (1) as so renumbered, the following sub-section was inserted: -" (2) Upon receipt of the report under sub-s. (1), the Collector may, without the order of a Magistrate having jurisdiction to try the case and before any report is submitted to such magistrate under sub s. (4) Of S. 74, pass such order as he may deem fit for the custody of the intoxicants and other articles, if any, seized under this Act. " ( 14 ) A plain reading of sub s (2) will show that the power there under can be exercised by a Collector, and when read in the context of sub-s 7 (2) (b) of the Act, any other person empowered to exercise the powers under S. 78 (2) can pass orders there under. " ( 14 ) A plain reading of sub s (2) will show that the power there under can be exercised by a Collector, and when read in the context of sub-s 7 (2) (b) of the Act, any other person empowered to exercise the powers under S. 78 (2) can pass orders there under. In other words, without an appointment and empowerment under S. 7 (2) (b) persons other that the Collector cannot exercise powers of Collector under S. 78 (2 ). The notification dated January 19, 1979 did not empower the Deputy Commissioner of Excise and for that matter the Officer on Special Duty to exercise the powers under S. 78 (2) and in fact it could not have as S. 78 (2), as earlier noticed, was brought on the statute book in 1983. The notification dated January 28, 1985 empowering the Officer on Special Duty to exercise certain powers under the Act did not include the powers under S. 78 (2 ). Patently therefore Sri Chakraborty could not exercise the powers of a Collector under S. 78 (2) and consequently the order passed by Sri Chakraborty in the instant case must be said to be without jurisdiction. ( 15 ) MR. Mahato appearing for the state however contended that as by the notifications earlier referred to Sri Chakraborty was given the powers of the Collector under S. 73 (1) of the Act he was competent, without any further power conferred upon him under S. 78 (2), to pass the impugned order. There is no merit in this contention of Mr. Mahato Under S. 736 (1) a Collectors may and in view of the notifications referred to earlier Sri Chakraborty as Officer on Special Duty may without the order of a Magistrate investigate any offence punishable under the Act and under sub-s (2) thereof any other excise Officer specially empowered in this behalf by the State Government may investigate any such offence. We will assume for our present purposes that under S. 73 (1) if a Collector investigates into an offence under the Act he can keep articles seized by him during such investigation in his custody, but then it is the admitted case of the State that investigation in the instant cases is being conducted by an Inspector under sub-s (2) of S. 73 and he forwarded a report under S. 78 (1) to Sri Chakraborty to exercise his purported powers under-section 78 (2 ). ( 16 ) NOW that the order passed by the Excise authorities has been found to be without jurisdiction, it has to be next considered whether the learned Magistrate was competent to entertain the application of the petitioner under S. 457 of the Code of Criminal Procedure. ( 17 ) AS has been already noticed the truck in the instant case was seized by a Police officer and it appears from the record that while forwarding the accused persons the police also forwarded a seizure list in respect of the truck in question. There cannot be any escape from the conclusion therefore that the seizure of the truck in question in the instant case was reported to a magistrate. The seizure was undoubtedly valid and legal under S. 102 of the Code of Criminal Procedure and when such seizure was reported to the Magistrate the latter were competent to entertain the application of the petitioner. It necessarily follows that all subsequent orders made pursuant to the application culminating in the order passed by this Court dated May 2, 1985 are within jurisdiction. Relying upon an unreported judgment of this Court passed in Criminal. Revision Case No 1158 of 1969 (State v. Parbati Naskar) dated February 20, 1970 Mr. Mahato however contended that the learned Magistrate was not justified in entertaining the application of the petitioner for return of the truck under S. 457 Cr. P. C. Having carefully gone through the judgment we are of the opinion that as the facts of that case are completely different from those of the present case, the principle laid down therein has no manner of application herein. In that case the seizure was made by an Excise Officer and in excise of his powers under the Act he reported the seizure to the Collector of Excise. The Collector in his turn passed an order regarding custody of the vehicle. In that case the seizure was made by an Excise Officer and in excise of his powers under the Act he reported the seizure to the Collector of Excise. The Collector in his turn passed an order regarding custody of the vehicle. It is in the context of those facts that the Division Bench of this Court held that S. 523 of the Code of Criminal Procedure 1898, which corresponded to S. 457 of the Cr. P. C. 1973, did not apply. ( 18 ) FOR the foregoing discussions we rejects the application filed by the State for modification of our order dated May 2, 1985 and direct the learned Magistrate to comply with the same expeditiously. Sankar Bhattacharyya, J.- I agree. Application rejected.