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2011 DIGILAW 59 (AP)

Muthneni Chander v. State of A. P.

2011-01-28

SAMUDRALA GOVINDARAJULU

body2011
ORDER The petitioners 1to 4/A-1, A-2, A-4 and A -5 are accused of offence punishable under Section 36(b)(c) of A.P. Excise Act (in short, the Act) in C.C. No. 123/2009 on the file of Special Judicial Magistrate of the First Class for Excise cases, Warangal. A-1 is the licence holder of Sri Sravanthi Bar and Restaurant, Warangal. He is also owner of Park lane (SSS) wines, Warangal, which is being run with the licence issued in the name of A-3. A-2 is Gumastha of Parklane (SSS) wines. A-4 and A-5 are licensed shop owners of M/s. Kiran Wines and M/s. Sri SSS wines, Warangal. On the night of 11/12-4-2009, the Inspector of Police, Matwada Circle, raided the shop of Parklane (SSS) Wines and found that IMFL bottles were being sold in that shop by bringing the same from and in collusion with A-4 and A-5 for gaining more profits. Thus, the prosecution alleges that there was violation of conditions of licence committed by the accused and thereby rendered themselves punishable under Section 36(b) and (c) of the Act. 2. It is contended by the petitioners' counsel that as per the Andhra Pradesh Excise (Powers and Duties) Rules, 1972 (in short, the Rules) Framed under Sections 52 and 53 of the Andhra Pradesh Excise Act, 1968, the Inspector of Police has no power to inspect or seize any contraband from any licensed shop. But, Rule 3 (1) of the said rules empowers not only excise officers, but also any police officer of the rank and above the rank of Inspector as well as any officer of the Revenue Department to arrest any person for offences punishable under Sections 4, 35, 36, or 37 of the Act, to seize and detain any excisable and other article and also to detain and search any person. In view of Rule 3(1) of the Rules, it cannot be said that the Inspector of Police, Matwada Circle has no power to make inspector of Parklane (SSS) wines, Warangal and to detect the offence as well as to seize the IMFL bottles which were bring sold in contravention of the licence conditions in that shop. 3. In view of Rule 3(1) of the Rules, it cannot be said that the Inspector of Police, Matwada Circle has no power to make inspector of Parklane (SSS) wines, Warangal and to detect the offence as well as to seize the IMFL bottles which were bring sold in contravention of the licence conditions in that shop. 3. But, as per$ection56oftheAct, it is only the Prohibition and Excise Officer not below the rank of Prohibition and Excise Sub Inspector who has got power of investigation as regards offences under Sections 27, 34, 35, 36, 37, 37(A), 40(A) of the Act within such area as may be notified in this behalf. After investigation, Section 57 of the Act empowers such investigating officer namely, Prohibition and Excise Officer not below the rank of Prohibition and Excise Sub- Inspector to file report before the Magistrate, in which event, such Prohibition and Excise Officer for the purpose of Section 190 of the Code of Criminal Procedure 1973 will be deemed to be a Police Officer and the report filed by him to be a police report. Thus, under Sections 56 and 57 of the Act, it is only the Prohibition and Excise Officer, who is competent to make investigation and to file report/charge sheet before the Magistrate. When the Inspector of Police, Matwada circle raided Parklane (SSS) wine shop and seized IMFL bottles which were being sold contrary to the licence conditions rendering the accused themselves punishable under Section 36 of the Act, then it is for the said Inspector of Police to report the said matter to the Prohibition and Excise Officer concerned having territorial jurisdiction over the area for registration of the case, for investigation of the case and for filing final report/charge sheet after' investigation as per Sections 56 and 57 of the Act. A Police Officer muchless the Inspector of Police, Matwada Circle and the Sub Inspector of Police, Intehezargunj Police Station, Warangal have no jurisdiction to investigate into the offence punishable under Section 36 of the Act and to file charge sheet before the Magistrate. In that view of the matter, investigation made by the Sub-Inspector of Police, Intehezargunj police station, Warangal and charge sheet filed by him before the lower court against the petitioners are without jurisdiction. 4. In that view of the matter, investigation made by the Sub-Inspector of Police, Intehezargunj police station, Warangal and charge sheet filed by him before the lower court against the petitioners are without jurisdiction. 4. In the result, the criminal petition is allowed quashing the proceedings in C.C. No. 123/2009 on the file of Special Judicial Magistrate of First class for Excise offences, Warangal, in so far as the petitioners are concerned.