RAJESH BINDAL,J - (1.) THIS order will dispose of a bunch of petitions, namely, Criminal Misc. Nos. 56591-M, 59325-M, 59327-M, 59967-M, 59969-M, 59971-M, 59973-M, 59975-M, 59977-M, 59979-M, 65940-M, 72085-M, 74003-M, 78656-M and 78671-M of 2006 involving identical question of law with similar facts. The facts are being noticed from Criminal Misc. No. 59327-M of 2006.
(2.) THE challenge in the present petition is to the order dated 26.9.2005 passed by the learned Sub Divisional Judicial Magistrate, Samrala in Criminal Case No. 182/2 arising out of FIR No. 72 dated 20.5.2005 registered at Police Station Machhiwara under Section 61/1/14 of the Punjab Excise Act, 1914 (for short, 'the 1914 Act'). The facts as stated in the petition are that FIR No. 72 was registered against the petitioner on 20.5.2005 under Sections 61/1/14 of the 1914 Act at Police Station Machhiwara with the allegation that 8 bottles of Desi Lal Kila liquor were recovered from the petitioner. The petitioner was arrested and released on bail. Police after investigation presented challan before the learned Illaqa Magistrate. On 25.10.2005, charge under Section 61/1/14 of the 1914 Act was framed against the petitioner and the case was fixed for prosecution evidence on 3.8.2006. On this date, the learned Sub Divisional Judicial Magistrate directed for the return of the challan to the Public Prosecutor in view of the amendment carried out in the 1914 Act vide Punjab Act No. 10 of 2003. The petitioner/ accused was directed to appear before the Assistant Excise and Taxation Commissioner, Ludhiana (3) on 29.8.2006 for further proceedings. It is this order passed by the Court below which is being impugned in the present petition.
(3.) ASSAILING the order, learned counsel for the petitioner submitted that in the present case, the recovery was made by the police. The investigation was also conducted by them and, thereafter, the challan was presented under Section 173 Cr.P.C before the competent Court and the prosecution of the petitioner started. Accordingly, now at this stage, the impugned order passed by the learned Court below directing the return of challan and ordering the prosecution of the petitioner under Section 61-A of the 1914 Act is totally without jurisdiction. Prior to the amendment made vide Punjab Act No. 10 of 2003, only the Courts could try the offences under Section 61 of the 1914 Act whereas after the amendment even the officers of the Department of Excise and Taxation have also been conferred the power. The power under Section 61-A of the 1914 Act could be exercised if the detention and a recovery of the liquor is by the excise officials and not where the recovery has been made by the police.;