STATE OF KERALA Vs. DANIAL CHELLAYYAN
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)These three appeals are filed by the State against the order of acquittal in three cases under the Prohibition Act for having been in possession of fermented wash and fermented toddy. The search and recovery in all the three cases was effected by the Preventive Officer and the acquittal is based on the fact that the Preventive Officer was not competent to effect the search and recovery.
(2.)S.37 of the Act authorises a Prohibition Officer not below such rank as the State Government may determine to enter and search and under SRO. 222 of 1962, Officers of the Excise Department not below the rank of Excise Inspectors alone are to be Prohibition Officers who have the powers of a Prohibition Officer under the Act.
(3.)The position taken by the State is that as Pw. 1 was on that particular day holding the charge of the Excise Inspector he has to be deemed be an Excise Inspector. Reliance is placed on S.18 of the General Clauses Act in support of this contention. S.18 of the General Clauses Act can be attracted only if the subordinate is lawfully performing the duties of the Excise Inspector at the time and as the Excise Inspector cannot delegate his powers and appoint his subordinate to exercise his functions the subordinate cannot be said to be lawfully performing his duty (vide AIR 1948 Allahabad 129). The effect of the Excise Inspector putting the Preventive Officer in charge of his duties is only to put him in charge of the administrative matters. The learned Magistrate was right in holding that Pw. 1 who was only put in temporary charge of the functions of the Excise Inspector was not competent to effect the search, and the orders of acquittal have only to be confirmed.
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