STATE OF RAJASTHAN Vs. SHIVDAYAL

JUDGEMENT

(1.) This State appeal has been filed against the Judgment of the learned Judicial Magistrate No 7. Hanumangarh dated I4.6.197S whereby the learned lower court has acquitted the accused-respondent Shivdayal of the offence under S. 54(a) of the Rajasthan Excise Act.

(2.) The fact necessary to be noticed for the disposal of this appeal briefly slated are : that Anopesingh, ASP., In-charge of the Police Station got information that one Shivdayal resident of Sarasiya is indulged in selling illicit liquor and, therefore, he went to his village on 13.1.1976 at 6 p.m. and on search, found that he was selling illicit liquor in the southern Abadi of Village Saresiya. He was found in possession of 4 bottles of illicit liquor pineapples make and one bottle half empty containing 250 gms of liquor. After investigation, the case against the accused-respondent was challenged. In this case, the entire investigation has been made by ASI. whereas, according to S. 10 of the Rajasthan Excise Act, the investigation could have only been done by an officer not below the rank of Sub-Inspector police. In this respect the learned lower Court made reference to the notification No. 1 49(1) SB/50, dated 18th May, 1951 whereby the State Govt, has authorised Naib Tehsildar and Sub-Inspector of Police to conduct investigation in the Excise cases As Shri Anopsingh was only holding the rank of ASI., he was not authorised to conduct this investigation. The learned Public Prosecutor has failed to point out any notification of the Govt, by which the ASI. has been authorised to conduct investigation in the Excise matters, on the relevant date i.e. on 13.1.1976.

(3.) In this view of the matter, when the investigation has been conducted by an unauthorised officer the conviction against the accused respondent could not have been recorded and, therefore find no perversity in the Judgment of the learned lower court.