AMAR SARAN,R.N.MISRA, JJ. - (1.) THESE two writ petitions contain similar fact and law points, therefore, they are disposed of together and the judgment is given in Crl. Misc. Writ Petition No. 3073 of 2009. Heard Sri Umesh Narain Sharma, Senior Counsel, assisted by Sri Chandan Sharma, learned Counsel for the petitioners and learned A.G.A for the State. It appears from the FIR of Writ Petition No. 3073 of 2009 that the liqour shop of the petitioners was raided by the police on 8.2.2009 and a huge quantity of illicit liqour was recovered. A case on Crime No. 80 of 2009, under sections 60, 62, 63, 64 of U.P. Excise Act read with sections 102 and 103 of the Trade Marks Act and sections 255, 259, 260, 272, 273, 467, 468, 471, 419, 420 I.P.C has been registered by Iglas police of district Aligarh. In another writ petition being Crl. Misc. Writ Petition No. 1811 of 2009, the date of incident was intervening night of 20/21.1.2009, in which some illicit liqour was recovered by the police from the Vehicle and after that the petitioner's liqour shop was searched and recovery was made. The Police registered a case at Crime No. 42 of 2009, under sections 255, 259, 260, 272, 213,467,468,471,419,420 I.P.C sections 60, 62, 63, 64, 72 of the U.P. Excise Act, 1910 and section 102/103 of the Trade Marks Act, P.S. Iglas, district Aligarh.
(2.) THE petitioners by way of this petition have sought relief for quashing the FIRs and preventing their arrests. Learned Counsel for the petitioners have drawn our attention towards section 48 of U.P. Excise Act, 1910 (hereinafter referred to as the Act), which runs as under: "48. Power to enter and inspect places of manufacture and sale.-The Excise Commissioner, or a Collector, or any officer of the Excise Department not below such rank as the State Government may prescribe, or any police office duly empowered in that behalf may enter and inspect, at any time by day or by night, any place in which any licensed manufacturer carries on the manufacture of or stores any (intoxicant) and may enter and inspect at any time within the hours during which sale is permitted, and at any other time during which the same may be open, any place in which any intoxicant is kept for sale by any licensed person, and may examine, test, measure or weight any materials, stills, utensils, implements, apparatus, or intoxicant found in such place; and may seize any measures, weights or testing instruments which he has reason to believe to be false". He has further contended that in view of G.O. No. 1099-E-2/XIII-239-88 dated April, 1993 and G.O. No. U.O.-37/6-Pu-9-2001 dated 18.5.2001, (Annexure 3 and 4 to the writ petition), no such raid could be made by the police officer below the rank of Deputy Superintendent of Police and according to him, search and seizure was illegal. Learned A.G.A has refuted the contention of learned Counsel for the petitioners and has contended that in such case of emergency, where information regarding commission of cognizable offence is received from the informer or otherwise to the police, the Incharge of police station can arrange such raid for seizure of contraband. From perusal of the aforesaid section 48 of the Act and the Government Orders, it is clear that these provisions relates to the normal inspection of the excise shops and not for any offence, committed under the Act and that is why section 49 of the said Act, which is quoted below, empowers even police officer of the rank of Sub-Inspector to investigation the offence committed under the Act: Section 49: Power of certain officers -to investigate into offences punishable under this Act.-(1) A police officer not below the rank of Sub-Inspector and an officer of the Excise department now below such rank as the State Government may prescribe, may investigate into any offence punishable under this Act committed within the limits of the area in which such officer exercise jurisdiction. (2) Any such officer may exercise the same powers in respect of such investigation as an officer in charge of a police station may exercise in a cognizable case under the provisions of Chapter XII of the Code of Criminal Procedure, 1973, and if specially empowered in that behalf by the State Government, such officer may, without reference to a Magistrate, and for reasons to be recorded by him in writing, stop further proceedings against any person concerned or supposed to be concerned in any offence punishable under this Act into which he has investigated". 4. We may further clarify the position by quoting section 53 of the said Act, which empowers the police even of the rank of Sub-Inspector to search, recover and seize the contraband, if comes under the punishable sections 60, 61, 62, 63 and 65 of the Act. Section 53 of the Act is quoted below: "53: Power of Collector or officer of the Excise Department to search without warrant.-(1) Whenever a Collector or an officer of the Excise Department not below such rank as the State Government may prescribe or a police officer not below the rank of Sub-Inspector has reason to believe that an offence punishable under section 60, section 61, section 62, section 63 or section 65 has been, is being or is likely to be committed in any place and that a 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 an office other than a Collector teking action under this sub-section shall before entering such place record the grounds of his belief as aforesaid. (2) Further powers of seizure, detention, search and arrest.-The Collector of other officer as aforesaid may seize anything found in such place 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 such offence as aforesaid". 5. In the present case before us, it is clear that the police received information about collection of illicit liqour on the premises in question and went there for search and seizure. It was pointed out on the spot that another police party had already taken an effective step for arresting some accused and recovering illicit liqour. The Iglas police also recovered illicit liqour in huge quantity from the petitioners' shop. The offences were cognizable, hence police had power to interfere. In view of .above, it is clear that the recovery in question was made in accordance with the provisions of the Act and there was prima facie no illegality in it. Moreover, a number of offences under different sections of I.P.C and Trade Marks Act were also committed by the petitioners, and the police was competent to recover illicit articles and investigate the matter under normal law also. These are the matters of fact whether there was any recovery, whether there was any shop of the petitioners and whether they were concerned with it or not and requires evidence, which cannot be decided in writ petition, under Article 226 of the Constitution of India. This is for the Investigating Officer to collect evidence during investigation and reach to some logical conclusion.
(3.) WITH these observations, both the writ petitions stands dismissed. Let a copy of this order be placed in the file of Crl. Misc. Writ Petition No. 1811 of 2009. Petitioners Dismissed.;