D.S.Tewatia, J. - (1.) DARSHAN Singh Petitioner was challaned, under Section 61(1)(c) of the Punjab Excise Act, 1914 (Punjab Act 1 of 1914), hereinafter referred to as the Excise Act. He was found guilty of the charge by the trial Magistrate and consequently was convicted under Section 61(1)(c) of the Excise Act and was awarded sentence of nine months' rigorous imprisonment and a fine of Rs. 200 and in default of payment of fine to further undergo rigorous imprisonment for three months. He was also required to furnish bond with one surety in the amount of Rs. 1,000 covering a period of one year after his release from prison under Section 69(a) of the Excise Act. An appeal to the Additional Sessions Judge, Ludhiana, at the instance of the Petitioner against his conviction and sentence also failed and hence this revision petition. Criminal Revision No. 786 of 1970 was also ordered to be heard along with the present revision, as a common question of law and fact is involved in them. Therefore, this judgment will dispose of both of these revisions.
(2.) THE Petitioner challenged his conviction and sentence on many grounds but the admitting Bench admitted this revision petition only on grounds Nos. 1, 2 and 3 which run as under: (1) That entire proceedings are void ab initio inasmuch as before the Magistrate there was no complaint or report made by an Excise Officer within the meaning of Section 75 of the Punjab Excise Act, 1914, and as such the Magistrate was not competent to take cognizance of the offence. (2) That Section 20 of the Police Act, 1961, clearly prohibits the conferment or investitual of the powers of an Excise Officer under the Punjab Excise Act, 1914, or otherwise on a police officer and as such the notification No. 990 -E&T -56/724, dated 19th March, 1956, Revenue Department, Punjab Government so far as the said notification purports to confer or vest the powers of an Excise Officer on a Police Officer is ultra vires the powers of the Punjab Government. (3) That the said notification is further bad in law inasmuch as under Section 46 of the Punjab Excise Act, the powers to investigate an excise offence can be invested, on an Excise Officer, not below the rank of Sub -Inspector. As such the powers under Section 46 of the Punjab Excise Act, 1914, can be invested on a Police Officer only after appointing a Police Officer as an Excise Officer of the rank not below that of an Excise Sub -Inspector. But no such appointment has been made. This revision petition came up for hearing before our learned brother Jindra Lal, J., who referred it for decision to a larger Bench, vide his order, dated 29th July, 1970, and that is how this revision has come up before us for decision. Mr. Ajmer Singh, learned Counsel for the Petitioner in Criminal Revision No. 516 of 1970 has urged two contentions before us. First, that Section 20 of the Police Act, 1861, prohibits the conferment of the powers of an Excise Officer on a police officer with the result that the police officers cannot perform the functions of the Excise Officers and since under Section 75 of the Excise Act, the Magistrate could take cognizance of an excise offence either on his own knowledge or on the complaint or report submitted to him by an Excise Officer and there being no report before him from a competent Excise Officer in this case, so the trial of the present case before the trial Magistrate was null and void ab initio and conviction of the Petitioner, consequently, is illegal. The second contention advanced by the learned Counsel is that even if it is held that a police! officer could be appointed as an Excise Officer, yet the notification, dated 19th March, 1956, investing a police officer with the powers of an Excise Officer has not specifically conferred on him the power to submit a, report under Section 75 of the Excise Act. Hence, for the purposes of Section 75 of the Excise Act, the police officer in question cannot be considered as an Excise Officer.
(3.) TAKING the second contention of the learned Counsel for the Petitioner first, we are of the view that there is no substance in the same. The learned Counsel, in support of this contention, has placed reliance on the following observations of Austhana, J., who delivered the Division Bench judgment in Ganga Din v. State, I.L.R. 1955 All. 205. In my opinion a police officer, or any other person, on whom only some of the powers of an excise officer are conferred by the Provincial Government, does not become an excise officer for all purposes of the Excise Act but he is an excise officer for the limited purpose for which the powers have been conferred on him and, therefore, he is not competent to file a complaint in respect of an offence under Section 60 of the Excise Act unless that power has been expressly conferred on him under some notification of the Provincial Government. As in this case there is nothing on the record that any such power was conferred on the police officer who submitted the charge sheet, he was not competent to file the complaint as required under Section 70 of the Excise Act, nor could he be considered an Excise officer for the purposes of that section and in this view of the matter the learned Magistrate had no jurisdiction to take cognizance of the case. To be able to view the aforesaid observations of Asthana, J. in correct perspective, it will be desirable to take notice of a few relevant provisions of the United Provinces Excise Act, 1910, hereinafter referred to as the U.P. Act. Section 3(2) of the U.P. Excise Act defines 'Excise Officer' as follows: 3. In this Act, unless there is something repugnant in the subject or context, - - (2) 'Excise Officer' means a Collector or any officer or person appointed or invested with powers under Section 10. Section 10(2)(d) of the U.P. Excise Act deals with the powers of the State Government to appoint officers of the Excise Department Section 10(2)(e) thereof authorises the State Government to order exercise and performance of powers and duties by officers other than excise officers and, by other persons and it reads thus: 10(2). The State Government may by notification applicable to the whole of Uttar Pradesh or to any district or local area comprised there - (e) order that all or any of the powers and duties assigned to an officer of the Excise Department under Clause (d) of this sub -section shall, subject to the provisions of this Act, be exercised and performed by any officer other than an. officer of the Excise Department or by any person; A consideration of the above extracted provisions of the U.P. Excise Act shows that a person designated as the excise officer can exercise only such powers and can perform only such duties as are specifically assigned to him by the State Government. Consequently, this leaves no scope to entertain any doubt about the correctness of the view expressed by Asthana, J. in Ganga Din's case, I.L.R. 1955 All. 205 (supra) that a police officer or any other person, on whom only some of the powers of the excise officer are conferred by the State Government, does not become an excise officer for all purposes of the Excise Act and that he is an excise officer for the limited purposes for which the powers, had been conferred on him.;