Decided on September 13,1967

RANA Respondents

Cited Judgements :-



BHANDARI, Actg. C.J. - (1.)TEJ Raj, Officer Incharge, Government Railway Police Station, Jodhpur, submitted a complaint before the Special Judicial (Railway) Magistrate, Jodhpur, that Rana, respondent, was found coming out of a compartment of 98 down train at 6-30 a. m., on January 10, 1963. with a suit case in his hand, by Danaram, Head Constable. After sometime that suit case was searched and from it 50 Grams of illicit 'Charas' was recovered. It was prayed that action be taken against Rana under sec. 54, Rajasthan Excise Act, 1950 (hereinafter called the Act). On this complaint, Rana was tried by the learned Magistrate of the charge under sec. 54(a) of the Act. The accused denied the possession of the 'Charas'. He was convicted by the Special Judicial (Railway) Magistrate, of the offence under sec. 54(a) of the Act and was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to undergo further rigorous imprisonment for three months. On appeal by the respondent, he was acquitted by the learned Sessions Judge, Jodhpur. Hence this appeal on behalf of the State.
(2.)DURING the course of argument learned counsel for the respondent raised the point that the Special Judicial (Railway) Magistrate could not have taken cognizance of the offence as sec. 67 of the Act provides that "such cognizance can only be taken on a complaint by a Magistrate on his own knowledge or suspicion or on a complaint or the report of Excise Officer and Shri Tej Raj was not an Excise Officer within the meaning of that term under sec. 3(7) of the Act.
On examining the provisions of the Act, we find that this contention is correct. Sec. 3(7) runs a follows : "Excise Officer" means any officer or person other than the Excise Commissioner appointed under sec. 9 or invested with powers of an excise officer under this Act;" It is conceded by the learned Deputy Government Advocate that Shri Tej Raj was not appointed as an Excise Officer under sec. 9 of the Act. It is to be seen whether Shri Tej Raj can be deemed to be invested with the powers of an Excise Officer under the Act. Sec. 10 of the Act empowers the State Government to order that all or any of the powers and duties assigned to an officer of the Excise Department under the Act may, subject to the provisions thereof, be exercised and performed by any officer other than an officer of the Excise Department or by any other person. The State Government in exercise of the powers conferred under sec. 10 of the Act, issued the following notification : "No. F. 49(1)S/R. 50, dated 15th May, 1951, In Exercise of the powers conferred by Sec. 10 of the Rajasthan Excise Act, 1950, the Government of Rajasthan is pleased to order that the Police and Revenue Officers not below the rank specified hereunder shall exercise the powers and perform the duties under sections mentioned against them : (1) Sub Inspectors of Police and above......... sec. 44, 47 and 67(1)(a). (2) Naib Tehsildar, Revenue and above...... Sec. 47. (3) Assistant Collector, Revenue and above ......Sec. 43. (4) All Officers of Police and Revenue, including Constables and Chowkidars and Patwaris......Sec. 45." The aforesaid notification empowered the Sub-Inspectors of Police and officers above their rank to file a complaint or a report under sec. 67 on the basis of which cognizance of offences can be taken by a Magistrate. Learned Deputy Government Advocate had to concede that Tej Raj, B. J., was an officer of the rank of a Sub-Inspector or above. He could not have, therefore, filed a complaint or a report on the basis of which the Magistrate could take cognizance of the offence.

Faced with the difficulty, learned Dy. Government Advocate argued that the words "on a complaint or the report of an Excise Officer" should be read in a disjointed manner so as to convey the meaning that the Magistrate could take cognizance of an offence on the complaint of any person or on the report of an Excise Officer". This interpretation cannot be accepted. If such were the intention of the Legislature, it could have used the phraseology "on a complaint made by any person or on a report of an Excise Officer". The purpose behind sec. 67 of the Act is that cognizance of an offence should not be taken at the instance of any person other than an Excise Officer, so that there may not be any undue harassment to the public. This section, which is meant to save public from unnecessary harassment, must be construed strictly and cognizance of an offence could not be taken except in the manner provided therein.

The result is that Rana could not have been tried on the complaint of Tej Raj, B.J., In this view of the matter, we do not find any ground for interference in this appeal. The appeal is, therefore, dismissed.

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