- (1.) A common question arises in these Criminal miscellaneous Cases and so they are being disposed of by a common order.
(2.) REPORTS are filed by the Excise Inspectors in the court of Judicial First Class Magistrate/ Chief Judicial Magistrate alleging offence under various Sections of the Abkari Act including S. 57a of the Abkari act (hereinafter referred to as "the Act" ). The Excise Inspector and party conducted search of liquor shops belonging to the accused and took samples of liquor which was sent to the chemical examiner who reported that the same contained noxious and other prohibited articles which are injurious to health and hence it is alleged that they committed offence punishable under s. 57a of the Act as well. The prayer in the petitions is to quash the proceedings pending before the respective courts on the ground that the Excise inspectors are not authorised to conduct search, seizure, take samples from the arrack shops when offence alleged to have been committed is punishable under s. 57a of the Act and to file a report before the Court. S. 2 (6) of the Act defines Abkari Inspector thus : 'abkari Inspector" means an officer appointed under S. 4, clause (d ). " S. 4 (d) empowers the Government to appoint officers to perform the acts and duties mentioned in S. 40 to 53 inclusive of this Act. In exercise of the powers conferred under S. 4 of the Act, notification, SRO 234/67 has been issued on 10. 8. 1967 by which all officers in the Excise Department not below the rank of Excise Inspector are appointed to perform the acts and duties mentioned in S. 40 to 53 inclusive of the Act within the area for which they are appointed. It is not disputed that the Excise Inspectors who conducted the search, took samples and filed the reports are not appointed within the area where the respective shops are situated.
(3.) RELYING on S. 30, 31, 32, 34 and 50 of the Act, counsel for the petitioners argued that the powers conferred on the Abkari Officers under those Sections do not take in to deal with the case which comes under s. 57a of the Act S. 50 of the Act empowers the Abkari. Inspector to file a report before the Court having jurisdiction to try the case including the name of offenders and the articles seized. In such cases, the Magistrate is empowered to inquire into such offence and try the persons accused thereof in like manner as if complaint had been made before him as prescribed in the Code of criminal Procedure. It was argued by counsel for the petitioners that it is only S. 50 of the Act which empowers the Abkari Inspector to file a report and that too before the court which the Magistrate is empowered to try and as offence punishable under S. 57a of the Act is triable exclusively by the Court of Sessions, the Abkari Inspector is not competent to file the report in a case punishable under S. 57 A of the Act. It was also pointed out that appropriate amendments have been made by the Abkari (Amendment) Ordinance, 1997 which came into force on 3. 6. 1997 only incorporating suitable provisions in the Act which empowers the Inspector to deal with cases punishable under S. 57a of the Act and to file report before the Court under S. 50 of the Act. S. 31 of the Act is pressed into service by the prosecutor who argued that despite the fact that S. 57 A is not specified in s. 30 and 31 of the Act, the Abkari Inspector has got power to deal with any offence under the Act S. 31 of the Act is extracted hereunder: Tower to certain abkari and police officers to search houses, etc, without warrant - Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under S. 8 or S. 15c or S. 55 or S. 58b or s. 56a or S. 57 or S. 58 or S. 58a or S. 58b of this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any tune by day or night, enter and search any place and may seize anything found therein 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 any offence under this Act. " The letter part of S. 31 empowers the Abkari Officers to search any place and seize anything found therein which he has reason to believe to be liable to confiscation under the 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 any offence under the Act. 6. When an Abkari Inspector has reason to believe that an offence under the Act is committed, he shall forward a report to the Magistrate setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which may be necessary to produce before him. In such event, the magistrate shall inquire into the offence as if the complaint had been made before him as prescribed in the Code of Criminal Procedure. The Magistrate of the First Class is empowered to take cognizance of the offence upon receiving the complaint which constitute an offence. When the complaint is received, the magistrate taking cognizance of the offence shall examine upon oath the complainant and his witnesses present. But, if the complaint is made in writing, the Magistrate need not examine the complainant and his witnesses if he is a public servant acting or purporting to act in the discharge of his official duties or the court has made the complaint. The report filed by the excise Inspector can be treated as a complaint in which case, the Excise inspector being a public servant acting in the discharge of his official duties, the Court is not obliged to examine the complainant and his witnesses. But, as the offence is exclusively traiable by the Court of Sessions, he shall call upon the complainant to produce witnesses and examine them on oath as provided in the proviso to S. 200 (2) Crl. P. C.;