PUBLIC PROSECUTOR FOR AND ON BEHALF OF STATE Vs. JOAO VITO COLACO OF COLACOVADO

JUDGEMENT

(1.) This is an acquittal appeal under S. 417 of the Criminal Procedure Code directed against the acquittal order passed by the learned Magistrate, Eurico das Dores da Silva, acquitting the accused (1) and convicting the accused (2) for offences under Section 8 read with Section 30 (a) of the Goa, Daman and Diu Excise Duty Act, 1964, and sentencing him to pay a fine of Rs. 100. There is also an 'appeal' against the order passed by the learned Magistrate directing that the 637 quart bottles of Old Tavern Whisky secured from the possession of accused (2) be confiscated in case he does not pay a fine of Rs. 100 in accordance with the provisions of Section 39 of this Act.

(2.) The facts leading to this appeal, broadly stated, are that the two accused were tried summarily by the learned Magistrate for offences under Section 8 read with Sections 30 (a) and 37 of the Goa, Daman and Diu Excise Duty Act, 1964. The accused (1) pleaded not guilty; the accused (2) pleaded guilty. The State felt aggrieved by the acquittal of accused (1) and hence the present appeal.

(3.) Shri Surlikar, learned counsel for the accused (2), contends that the learned Magistrate was not competent to try the case summarily and, therefore, the trial is void. This contention is not without force. Section 260(1) enables any Magistrate of the first class specially empowered in this behalf by the State Government to try in a summary way all or any of the offence enumerated therein. We are concerned in this case with the offence enumerated in Section 260 (1) (a). The learned Magistrate was competent to try in a summary way the offences not punishable with imprisonment for a term exceeding six months, but where imprisonment exceeds six months he had no power to try the offences in a summary way.