Kalyan Dutta, J. - (1.) This is a reference made by the Additional Sessions Judge No. 1, Jodhpur, with a recommendation that the order of the learned Special Judicial (Railway) Magistrate Jodhpur taking cognizance against the petitioner of an offence under section 54 (a) of the Rajasthan Excise Act, 1950, hereinafter referred to as the Act may be quashed.
(2.) The reference arises under the following circumstances:- On September 27, 1972, at 5-15 p. m. Dalu Khan son of Salu Khan Salesman Liquor Shop, Merta Road made a verbal report with the police at Police Station Merta Road that the petitioner, who was a wine contractor and had a licence for selling liquor at a village Bhatu, purchased 22 bottles and 530 grams of liquor from the Government Warehouse, Merta. Another contractor Om Prakash by name also purchased liquor from the same warehouse and susequently sold away 36 bottles of liquor to the petitioner, who had no permit or licence for purchasing the same. On receipt of the above information, Dungar Singh, Station House Officer, Government Railway Police, Merta Road registered a criminal case under section 54 (a) of the Act and rushed to the Railway Station, for seizure of the 36 bottles which the petitioner was carrying to Khetu. The 36 bottles of wine were recovered from the possession of the petitioner in the presence of Uda Ram, Prem Das, Dalu Ram and other witnesses. The bottles were duly sealed but, later on, sample of liquor was taken from those bottles, and filled in 4 bottles by the Sub-Divisional Magistrate, on February 24, 1973, for being sent to the Chemical Examiner for analysis. The bottles containing the sample were examined by the Chemical Examiner and the Chief Public Analyst Rajasthan, Jaipur, on February 24 and May 21, 1973, and were reported to have contained different percentage of under proof ethyl alcohol. Upon receipt of the Chemical Examiners Report, Shri Dungar Singh collected other evidence in the case and, upon completion of the investigation, filed a charge sheet against the petitioner under section 54 (a) of the Act in the court of the Special Judicial (Railway) Magistrate, Jodhpur. The learned Magistrate took cognizance of the aforesaid offence against the petitioner and proceeded to hold a trial. He framed necessary charge against the petitioner, to which the latter pleaded not guilty. As against the order taking cognizance of the offence and framing of the charge dated November 27, 1973, the petitioner filed a revision-petition in the court of the Additional Sessions Judge No. 1, Jodhpur. The learned Additional Sessions Judge No. 1, Jodhpur, after hearing the parties, was of the view that the learned Magistrate committed a grave error in taking cognizance of the offence under section 54(a) of the Act against the petitioner on a police report submitted by Dungar Singh, Station House Officer, who had no power to investigate into the matter and file a charge-sheet as it related to an offence in respect of a retail licence granted to the petitioner for sale of liquor under the Act. As this case was governed by the old Code of Criminal Procedure the Additional Sessions Judge thought it proper to make a reference to this Court with a recommendation that the order passed by the learned Magistrate taking cognizance of the aforesaid offence against the petitioner may be quashed.
(3.) I have gone through the record and heard Mr. S. K. Vyas learned counsel for the petitioner and Mr. S. L. Mardia, Public Prosecutor. For the reasons mentioned below the reference made by the Additional Sessions Judge No. 1, Jodhpur, cannot be accepted. From a bare perusal of the notification No. F. 1(52,) E & T/61, dated 9th September, 1961 (issued by the Rajasthan Government) it is evident that a Sub-Inspector of Police could exercise the powers and perform the duties under sections 44, 47 and 67 (1) (a) of the Act in all cases except in cases in respect of the retail licences granted for the sale of liquor under the Act. The instant case is not a case in respect of retail licence granted to the petitioner for sale of liquor under the Act. The case against the petitioner was that he was found in possession of 36 bottles of liquor without having any licence or permit for their possession. Section 54(a) of the Act clearly lays down that whoever possesses any excisable article in contravention of the Act or of any rule or order made or of any licence, permit or pass granted thereunder shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 2,000/-. From a bare look into the recovery memo prepared by the Station House Officer at the time of seizure of 36 bottles from the possession of the petitioner it appears prima facie that the petitioner had obtained a permit for purchase of 22 bottles and 500 grams of liquor from the Government warehouse, Merta, and that he was not having a permit or a licence for purchase of 36 bottles. Hence, I am unable to subscribe to the view of the learned Additional Sessions Judge No. 1, Jodhpur, that the offence in this case was in respect of retail licence granted to the petitioner for sale of liquor under the Act. In this view of the matter. Shri Dungar Singh, Station House Officer, Government Railway Police, Merta Road could investigate into the matter and file a report against the petitioner in exercise of the powers and performance of the duties under sections 44, 47 and 67 (1) (a) of the Act by virtue of the referred to above notification of the Rajasthan Government, dated September 9, 1961. The learned Magistrate therefore, committed no error or illegality in taking cognizance of the offence under section 54 (a) of the Act against the petitioner on the police report made to him by Dungar Singh, S. H. O.;