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2016 DIGILAW 305 (RAJ)

Roop Chand v. State of Rajasthan

2016-02-22

VIJAY BISHNOI

body2016
ORDER : Vijay Bishnoi, J. By this criminal misc. petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 19.10.2015 passed by Additional Sessions Judge, Churu (hereinafter referred to as 'the revisional court') in Revision Petition No.88/2014, whereby the revisional court has dismissed the revision petition and affirmed the order dated 02.08.2014 passed by the Judicial Magistrate (First Class), Churu (hereinafter referred to as 'the trial court') in Criminal Case No.172/2014, whereby the trial court has framed charges against the petitioner for the offence punishable under Section 19/54 of Rajasthan Excise Act, 1950 (hereinafter referred to as 'the Act of 1950'). 2. The argument of the petitioner before the revisional court was to the effect that before making search in the premises of the petitioner, from where the illicit liquor was recovered, the officer, who had conducted the search, neither obtained search warrant nor recorded any ground of his belief that had the search warrant been obtained, the offender would have an opportunity of escaping or concealing evidence of the offence. It is submitted that in absence of compliance of sub-section (1) of Section 47 of the Act of 1950, the charges framed by the trial court against the petitioner for the offence punishable under Section 19/54 of the Act of 1950 is illegal and liable to be quashed. Learned counsel for the petitioner has, therefore, prayed that this criminal misc. petition may kindly be allowed and the impugned orders passed by the courts below may kindly be set aside. 3. Per contra, learned Public Prosecutor has opposed the prayer of the petitioner and submitted that since the search was not conducted by the Excise Officer and was conducted by a Police Officer, the provision of Section 47 of the Act of 1950 has no applicability in the present matter and the revisional court has rightly dismissed the revision petition filed by the petitioner. 4. Heard learned counsel for the petitioner and perused the impugned orders as well as the charge-sheet. 5. From the perusal of the charge-sheet, it is clear that the search was conducted by the Police Officer and not by the Excise Officer. Section 47 of the Act of 1950 which reads as under:- "Section 47. 4. Heard learned counsel for the petitioner and perused the impugned orders as well as the charge-sheet. 5. From the perusal of the charge-sheet, it is clear that the search was conducted by the Police Officer and not by the Excise Officer. Section 47 of the Act of 1950 which reads as under:- "Section 47. Power of Excise Officer to search without warrant.-(1) Whenever an officer of the Excise Department not below such rank as the State Government may prescribe has reason to believe that an offence punishable under this Act has been, is being or is likely to be committed in any place, and that 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: Provided that such officer shall before entering such place record the grounds of his belief as aforesaid. (2) Every Excise Officer as aforesaid may seize any thing found in such place which he has reason to believe to be liable to confiscation under this Act and may detain and 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." 6. The definition of "Excise Officer" is provided in Section 3(7) of the Act of 1950 which reads as under:- "(7) "Excise Officer" means any officer or person other than the Excise Commissioner appointed under Section 9 or invested with powers of an Excise Officer under this Act;" 7. From the above mentioned definition, it is clear that "Excise Officer" means any officer or person other than the Excise Commissioner or invested with the powers of an Excise Officer under this Act, however, the Police Officer has not been termed as an Excise Officer and learned counsel for the petitioner has also failed to satisfy that the Police Officer, who had conducted the search, was invested with the powers of the Excise Officer under the Act of 1950. 8. In view of the above, I am of the opinion that the revisional court has rightly observed that the search was conducted by the Police Officer and not by the Excise Officer and, therefore, the provision of Section 47 of the Act of 1950 has no applicability in the present case. 9. 8. In view of the above, I am of the opinion that the revisional court has rightly observed that the search was conducted by the Police Officer and not by the Excise Officer and, therefore, the provision of Section 47 of the Act of 1950 has no applicability in the present case. 9. Hence, no interference is called for in this criminal misc. petition. The same is therefore, dismissed. Stay petition also stands dismissed.