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Himachal Pradesh High Court · body

2003 DIGILAW 205 (HP)

RAKESH KUMAR v. STATE OF H. P.

2003-07-29

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—These petitions Cr.M.M.Os. No. 18 and 32 of 2003 have been filed by petitioner Rakesh Kumar for quashing of FIRs No. 21 and 22 of 2003 registered with the Police Station, Solan, on 29.1.2003 and 31.1.2003 respectively. 2. Brief facts : 3. Petitioner Rakesh Kumar is an employee of M/s. Rana and Company, Excise licencees for the year 2002-2003. M/s. Rana and Company is licenced to run Beer Bar at Solan. On 29.1.2003, licenced Bar was searched by Inspector Shamsher Singh of Police Station Solan. On search following liquor was recovered : "60. Pouches marked as Hero No. 1 each containing 750 ml liquor; Masale Dar made liquor Hero No. 1 72 halves each containing 375 ML liquor and 53 quarters each containing 180 ml liquor, Indian Made Foreign liquor marked as Royal Stag 4 halves containing 375 ml liquor each 4 quarters containing 180 ML each; Indian made foreign liquor marked as Bagpiper 7 halves containing 375 ML liquor each; 4 quarters containing 180 ML each, 3 halves of Aristocrat whisky containing 375 ML liquor in each 4 quarters containing 180 ML each; Aristocrat Premium 4 halves containing 375 ml liquor each 4 quarters containing 180 ML in each; MC Dowell No. 1 4 halves containing 375 ML liquor each 3 quarters containing 180 ML in each; Double Dog 2 halves containing 375 ML liquor each 2 quarters containing 180 ML in each; Director Special 5 quarters containing 180 ML each; Aristrocrat Zin 2 halves containing 375 ML liquor each 4 quarters containing 180 ML in each". 4. A case for an offence punishable under Section 61(l)(a) of the Punjab Excise Act, 1914, (hereinafter referred to as the Act) as applicable to Himachal Pradesh was registered in terms of FIR No. 21 of 2003. 5. On 31.1.2003 the said Inspector again searched the licenced Beer Bar of the petitioner and recovered the following quantity of liquor: "12 pouches marked as Hero No. 1 each containing 750 ML liquor Masale Dar Country made liquor Hero No. 1 9 halves each containing 375 ML liquor 10 quarters each containing 180 ML liquor, Indian made foreign liquor marked as Officer Choice=2 quarters containing 180 ML each; Indian made foreign liquor marked as Aristocrat=2 containing 180 ml in each." 6. Another case for an offence punishable under Section 61(l)(a) of the Act, was registered in terms of FIR No. 22 of 2003. 7. Petitioner by these two petitions has approached this Court for quashing of these FIRs. 8. Grievance of the petitioner is that Inspector Shamsher Singh, Police Officer, was not competent to enter and search the premises of the petitioner under the Act, and, therefore, the entire search was illegal and the petitioner cannot be prosecuted for the offences alleged. 9. I have heard Mr. Naresh K. Thakur, learned Counsel for the petitioner and Mr. Ashok Chaudhary, learned Additional Advocate General. Valuable assistance was also rendered by Mr. R.N. Sharma, Additional Excise and Taxation Commissioner. 10. The Government of Himachal Pradesh in the Department of Excise and Taxation issued a notification on 7th August, 1965, in exercise of the powers under Sections 3(3), 6(c), 8, 9, 10, 11, 13(b), 14, 45, 46, 47, 49, 58 and 73 of the Act, Section 14 of the Opium Act and Sections 23 and 30 of the Dangerous Drugs Act, as applicable to Himachal Pradesh in each case. This notification was issued in supersession of all previous notifications. This notification is called "Himachal Pradesh (Excise Powers and Appeal) Orders, 1965". Order 5 of the notification provides for classes of Excise Officers 1st Class, 2nd Class and 3rd Class. The officers mentioned in Group A, B and C under this order are designated as Excise Officer of first, second and third class respectively. Order 6 of this notification provides that the persons mentioned in Group A and B under this order are invested with the powers of Excise Officers of first class and third class respectively. Under Group "A" all the Police Officers of the rank of Head Constable and any rank superior thereto are to exercise the powers of Excise Officers of first Class. These police officers are designated as Excise Officer pursuant to the powers under Section 11 of the Act which provides that the State Government may, by notification, invest any person who is not an excise officer, with powers to perform all or any of the functions of an excise officer under the Act and such person shall in the exercise of these functions be deemed to be an excise officer. 11. 11. Relevant portion of the order 6 of the notification reads: (a) The persons mentioned in groups A and B below are, under Section 11 of the said Punjab Excise Act, as applied to Himachal Pradesh, invested with the powers of the Excise Officers of the 1st class and 3rd class respectively: Group "A"—(To exercise the powers of an Excise Officer of the 1st Class), (1) All Police Officers of the rank of Head Constable and any rank superior thereto....." 12. It is noticed that all Police Officers of the rank of Head Constable and above exercise the powers of Excise Officer of first class for the purpose of various functions of the Act including Sections 45, 46, 47, 49, 58 and 73 of the Act. 13. Section 45 of the Act empowers an Excise Officer not below the such rank as the State Government may prescribe: (a) enter and inspect at any time by day or by night, any place in which any licenced manufacture carries on the manufacture of or stores any intoxicant; (b) 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 person holding a licence under the Act; Such an Excise Officer has also power to examine accounts and registers etc. Further power of seizure of accounts, registers, measures is also given to these Excise Officers under Clause (d) of Section 45 of the Act. 14. It appears in the year 1988 the notification dated 7.8.1965 was amended by the Government by adding a proviso after existing sub order (1) Group "A" under Order 6. The relevant portion of amended order 6 reads : (a) The persons mentioned in groups A and B below are, under Section 11 of the said Punjab Excise Act, as applied to Himachal Pradesh, invested with the powers of the Excise Officers of the 1st Class and 3rd Class respectively: Group "A"—(To exercise the powers of an Excise Officer of the 1st Class). (1) All Police Officers of the rank of Head Constable and any rank superior thereto. (1) All Police Officers of the rank of Head Constable and any rank superior thereto. "Provided that no such powers to enter and inspect places of manufacture and sale and to examine and seize accounts and registers, test measures, weights and seize and materials, stills, utensils, implements, apparatus or intoxicants as provided in Section 45 of the Act, as specified in sub-order B(3) of Order 7 below shall be exercised by any Police Officer below the rank of the Deputy Superintendent of Police. "Provided further that the powers under Section 45 shall be exercised by the Police Officers so authorised only in such cases where he is accompanied^ by the Excise and Taxation Officer or Excise and Taxation Inspector. (2) All assistant Commissioners, Superintendents, assistant superintendents and probationary assistant superintendents of Central Excise Department. (Emphasis given) 15. A bare reading of the amendment makes it clear that power to enter and inspect the places of manufacture and sale and to examine and seize accounts and register, test measures, weights any materials stills, utensils implements, apparatus or intoxicants as contemplated under Section 45 of the Act, and specified in sub-order B(3) of Order 7 can only be exercised, after the amendment of this order, by Police Officer not below the rank of Deputy Superintendent of Police with the further stipulation that powers under Section 45 of the Act could only be exercised by designated Police Officer where he is accompanied by an Excise and Taxation Officer or Excise and Taxation Inspector. 16. The contention of Mr. Thakur is that part 6 of the order after its amendment is that power to inspect the places of manufactures and sale of the liquor can only be exercised by a Police Officer not below the rank of Deputy Superintendent of Police that too if such officer is accompanied by the Excise and Taxation Officer or Excise and Taxation Inspector. In the present case, as the Inspector of the Police was not designated Officer as contemplated by the proviso to Order 6, therefore, search was illegal and nonest and consequently the first information reports are liable to be quashed. 17. In the present case, when Inspector Shamsher Singh of Police Station Solan searched the licenced Beer Bar of the petitioner he did not act in exercise of the powers under Section 45 of the Act but under Section 49 of the Act. 17. In the present case, when Inspector Shamsher Singh of Police Station Solan searched the licenced Beer Bar of the petitioner he did not act in exercise of the powers under Section 45 of the Act but under Section 49 of the Act. As earlier noticed Section 45 empowers an excise officer to enter and inspect the places of manufacture, sale etc. whereas Section 49 of the Act specifically empowers an Excise Officer to search without warrant where the Excise Officer has reason to believe that the offence punishable under Sections 61, 62, 63 or 64, has been or is being, or is likely to be, committed in any place. Section 49 of the Act reads : 49.(1) Power of excise officer to search without warrant.—Whenever any excise officer not below such rank as the (State) Government may by notification prescribe, has reason to believe that an offence punishable under Section 61, Section 62, Section 63, or Section 64, has been , is being, it is likely to be, committed in any place, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, at any time, by day or night enter and search such place. (2) Further power of seizure, detention, search and arrest.—Every excise officer as aforesaid may seize anything found in such place which he has reason to believe to be liable to confiscation under this Act, and may detain an search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. 18. A careful reading of Section 49 read with Order 6 (supra) shows that Excise Officers of first class, irrespective of the rank of Police Officers are authorised to enter and search any place irrespective of nature of the place whether it is a licenced bar or private house or commercial place, if such excise officer has reason to believe that the offence punishable under Sections 61,62,63 and 64 has been, is being, or is likely to be committed. 19. Section 61 of the Punjab Excise Act is a punitive provision providing for penalty for unlawful, export, transport, manufacture or possession of any intoxicant, which includes liquor. 19. Section 61 of the Punjab Excise Act is a punitive provision providing for penalty for unlawful, export, transport, manufacture or possession of any intoxicant, which includes liquor. Prima-facie, possession of the petitioner of the country made liquor in its licenced bar was incontravention of the Act and therefore, mischief falls within the ambit of Section 61(l)(a) of the Act. 20. It may be emphasized that newly added proviso to order 6 (supra) does not cover Section 49 of the Act. It only covers Section 45 of the Act. Infact newly added proviso to order 6 specifically stipulated that power under Section 45 of the Act for the purpose of inspection of place of manufacture and sale cannot be exercised by the Police Officer below the rank of Deputy Superintendent of Police. This proviso is relatable only to Section 45 of the Act and not 49 of the Act. The powers under Section 45 of the Act, in my view, are administrative in nature whereas the powers exercisable under Section 49 of the Act are police powers for detection of the crime. The contention of the petitioner that search was without jurisdiction is misplaced. There is no merit in these petitions, which are dismissed.