Research › Browse › Judgment

Patna High Court · body

1994 DIGILAW 208 (PAT)

Shyam Kishore Ram v. State of Bihar

1994-04-27

NAGENDRA RAI

body1994
Order The present application has been tiled for quashing the order dated 11.11.1986 passed by Sub-divisional Magistrate, Barh taking cognizance under Section 47 (a) of the Bihar Excise Act (to be hereinafter referred to as the Act) in trial no. 468 of 1993. 2. In this case Inspector of Police, Pandarak police station lodged a written report addressed to the Officer Incharge of Pandarak Police Station on 2.10.1986 at 6.00 P.M. alleging, inter-alia, that on the same date at 5.30 P.M. when he reached at the country made liquor shop at Pandarak situate by the side of the road then he noticed that the shop was open and the country made liquor was being sold to the persons though on 2nd of October, 1986 according to the terms of the licence the licensee is not permitted to sell the liquor. Seeing the police party the persons who were taking liquor fled away. He apprehended Kishun Mahto and Brahmdeo Das. They were found having bottles of country made liquor with them and they stated that they have purchased it from the country made liquor shop in question. Thereafter, he seized the bottle of country made liquor from their possession. The persons who were selling the country made liquor had stated that he was selling the liquor on 2nd of October, 1986 on the direction of his employer. He did not show the licence nor any paper regarding the sale of country made liquor. Thereafter, he seized the bottles of liquor and other articles from the shop. 3. On the basis of the said written report he himself registered Pandarak P.S. Case No. 90 of 1986 for the offence under Section 47 (a) of the Act and after investigation submitted charge-sheet on 24.10.1986 and thereafter the cognizance was taken by the impugned order dated 11.11.1988. 4. learned counsel for the petitioners raised only one point in this case that under the provisions of the Bihar Excise Act, it is the excise officials who can investigate and lodge a complaint and the police officer has no power to investigate the case and to file a report for• the prosecution of the petitioners. 4. learned counsel for the petitioners raised only one point in this case that under the provisions of the Bihar Excise Act, it is the excise officials who can investigate and lodge a complaint and the police officer has no power to investigate the case and to file a report for• the prosecution of the petitioners. In this connection he drew my attention to Section 87 (a) of the Act, which provides inter alia that no Magistrate shall take cognizance of an offence referred to in Section 47, Section 49, Section 55 or Section 56, except 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 State Government. 5. In this case admittedly the investigation has been done by the police officer and a report has also been submitted by him. The question is whether the investigation as well as the report submitted by the police officer forms a basis of initiation of prosecution under the Act against the petitioners. Section 7 of the Act deals with establishments and delegation and withdrawal of powers Sub-section 2 (d) of Section 7 provides that the State Government may by notification applicable to the whole of the State or to any specified local area, order that all or any of the powers and duties assigned by or under this Act to any officer appointed under clause (c) of this Section shall be exercised and performed by any Government Officer or any other person. Sub-section (c) of Section 7 provides that the State Government may appoint officers of the Excise Department of such classes, and with such designations, powers and duties as the State Government may think fit. 6. The State Government has issued a notification no. 470F dated 15th January, 1919 in exercise of its power conferred under sub-section (d) of Section 7 of the Act authorising police officer not below the rank of Officer Incharge of Police Station to exercise the power of an officer of the Excise Department and in that view of the matter an Officer Incharge of Police Station can investigate the offence under Section 47 (a) of the Act, and can make a report and on the basis of which cognizance can be taken. 7. 7. It is not stated on behalf of the petitioners that the Police Officers who investigated the case or submitted the report were below the rank of Officer Incharge of the Police Station. The question raised by the petitioners is no longer res-integra and a learned single judge of this court in Ram Prasad Singh vs. The State of Bihar, 1957 BLJR page 342, has held that police officer not below the rank of the Officer Incharge of the Police Station could investigate the offence under Section 47 (a) of the Act and submit a report and on the basis of which cognizance can be taken under the provisions of the Act. 8. In my view, the only point raised on behalf of the petitioners has no force and the same is rejected. This apart the petitioners have challenged the order taking cognizance dated 11.11.1986 after such a long time. On this ground also, I do not want to interfere with the order. Accordingly, I do not find any merit in this application and as such it is dismissed.