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2007 DIGILAW 1470 (PAT)

Shambhu Choudhary v. State Of Bihar

2007-09-06

ABHIJIT SINHA

body2007
Judgment 1. The petitioners herein who have been impleaded as accused in Ahiyapur P.S. Case No. 306 of 2006 (G.R. No. 2391 of 2006) have questioned the propriety of order dated 1.3.2007 passed by Sri Arbind Kumar Singh, Judicial Magistrate, 1st Class, Muzaffarpur, whereby he has dismissed the petition filed by the petitioner for their discharge in the said case. 2. The prosecution story is based on the self statement of S.I. Md. Ayub, the Officer Incharge of Ahiyapur P.S. who stated inter alia that at about 8.15 A.M. on 10.9.2006 he received confidential information that wine shop owner Shambhu Choudhary along with Suresh Choudhary and Prem Choudhary used to sell wine illegally in addition to selling foreign liquor from their shop whereupon he requested Pradeep Kumar, Sub Inspector, Excise Department to co-operate and conducted a raid in the said shop at 11.10 A.M. with the help of other police officials and constable Navin Kumar of the Excise Department and found that Suresh Choudhary and Umesh Thakur were selling the wine from the shop. The shop as also the house were searched and in course thereof during the search of the upper floor of the house 80 cartons of medicinal wine with the label of Ayurvedic medicines and Jogi Baba pasted on top of each of the cartons were recovered, each carton containing bottles of 180 ML. with the stickers of Ayurvedic Medicine and Jogi Baba were seized under a seizure list and on the basis thereof the aforesaid Ahiyapur P.S. Case No. 306 of 2006 u/s. 271 and 272 of the Indian Penal Code and 47-A of the Excise Act was registered against 6 persons named in the F.I.R. 3. It has been submitted on behalf of the petitioners that the medicinal wine had neither been seized from the possession of the petitioners nor from the wine shop and there was no evidence of their being any complicity of any of these petitioners in dealing with the aforesaid illicit dealer and was, in fact, recovered from the room in the upper floor. In this connection it was submitted that from the licensed wine shop are running in the alleged house for which licenses have been granted to Birendra Kumar and Om Prakash Choudhary respectively for the year 2006-07 and the location of the shop prescribing the name of the landlord with its boundary was approved by the Excise Superintendent, Muzaffarpur. It is further submitted that it would be apparent from the perusal of the boundary that Binod Choudhary was the owner of the alleged house and the alleged rooms in which the shop are running were given to Birendra Kumar and Om Prakash Choudhary and not to the petitioners. 4. It has further been submitted that it would be apparent from the F.I.R. and the report of the Excise Department that petitioner nos. 1, 3 and 4 have no concern, either direct or indirect, with the alleged seizure or recovery and petitioner nos. 2, 5 and 6 were authorized salesmen of the shop. It was also submitted that since no irregularity or search of illegal wine was found in the alleged shop the petitioners cannot be said to have violated any of the provisions of the Excise Act. 5. The learned counsel further sought to submit that in view of Ss. 77 and 78 of the Excise Act the general police is not empowered to institute any case u/s. 47-A of the Excise Act and any case under the Excise Act can be instituted only at the instance of Excise Officials specially empowered for the same. It was also submitted that the offences under Ss. 272 and 273 of the Indian Penal Code have been added purposely for creating jurisdiction to institute the case although no offence therein can be said to have been made out from the averments in the self statement of the informant. It was further sought to be submitted that Sec. 47-A of the Excise Act is applicable only for the offences committed by the Company but in the present case the petitioners are neither a Company nor the Directors thereof and as such the petitioners cannot be fastened with the liability of the offence u/s. 47-A of the Act. It was further sought to be submitted that Sec. 47-A of the Excise Act is applicable only for the offences committed by the Company but in the present case the petitioners are neither a Company nor the Directors thereof and as such the petitioners cannot be fastened with the liability of the offence u/s. 47-A of the Act. It was also submitted that in view of Section 87 Excise Act no prosecution can be allowed against the petitioners as the charge sheet was submitted by the Sub-Inspector of Police who is not an Excise Officer as required u/s. 87 of the Excise Act. 6. The learned counsel for the petitioners in support of his submission has relied on the decision of Shyam Kishore Ram V/s. State of Bihar, 1995 2 PLJR 674 and Kamla Devi V/s. State of Bihar, Cri.Misc. No. 3194 of 1988 disposed of on 6.9.1991. 7. Section 77 of the Act provides for those Excise Officers who may investigate offences and Sec. 78 enlist the power and duties of Excise Officer investigating offences and the two Sections read as follows: 77. What Excise Officers may investigate offences. (1) A Collector may, without the order of a Magistrate, investigate offence punishable under this Act which a Court having jurisdiction over the local area within the limits of the Collectors jurisdiction would have powers to inquire into or try under the provisions of Chapter XIII of the Code of Criminal Procedure, 1973 (Act 2 of 1974) relating to the place of inquiry or trial. (2) Any other Excise officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under this Act may, without the order of a Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. 78. Powers and duties of Excise Officer investigating offence. (1) Any Collector, or any Excise officer empowered u/s. 77, sub-Sec. (2) may, after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise (a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer-in-charge of a Police-station, by Ss. (1) Any Collector, or any Excise officer empowered u/s. 77, sub-Sec. (2) may, after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise (a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer-in-charge of a Police-station, by Ss. 160 to 171 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) and (b) as regards offences punishable u/s. 47, Sec. 49, Sec. 55, or Sec. 56 of this Actany of the powers conferred upon Police Officers in respect of cognizable offences by clause first of sub-sec. (1) of Sec. 41 and by Sec. 55 of the said code, and the said portions of the said Code shall apply accordingly, subject to any restrictions or modifications prescribed by the State Government by the rule made u/s. 89, clause (o)." 8. Section 87 of the Act elucidates the situations when the Magistrate can take cognizance and reads as follows: "No Magistrate shall take cognizance of an offence referred to (a) in Sec. 47, Sec. 49, Sec. 55 or Sec. 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, or (b) in Sec. 57, Sec. 61, clause (de) or clause (e), or Sec. 62, except on the complaint or report of the Collector or an Excise Officer authorized by the Collector in this behalf. 9. In Shyam Kishore Rams case (supra) it was held that in view of Notification No. 470F dated 15.1.1919 an Officer Incharge of Police Station was authorized to exercise the power of an Officer of the Excise Department and in that view of the matter an Officer Incharge of a Police Station can investigate the offence u/s. 47-A of the Act and can make a report and on the basis thereof cognizance can be taken. 10. In the instant case although the F.I.R. had been registered by the Officer Incharge of Ahiyapur P.S. the investigation was carried out by Sri J.K.Prasad, S.I., who was not competent to investigate under the Excise Act, not being an Officer Incharge of a Police Station. 11. 10. In the instant case although the F.I.R. had been registered by the Officer Incharge of Ahiyapur P.S. the investigation was carried out by Sri J.K.Prasad, S.I., who was not competent to investigate under the Excise Act, not being an Officer Incharge of a Police Station. 11. The cognizance in the instant case has been taken on the basis of the charge sheet submitted by Sub Inspector of Police, who is not an Excise Officer as required u/s. 87 of the Excise Act. The learned Court below has erred in dismissing the petition of the petitioners for their discharge. As such the prosecution of the petitioner is an abuse of the process of Court and cannot be allowed to continue. 12. In the result the order impugned is hereby quashed and the application is allowed.