Gopal Prasad Kalowar vs State of Assam

P.C. Phukan, J.—This Revision petition is directed against the order dated 15.7.1993 passed by the learned Additional Sessions Judge, Dhubri on Criminal Appeal No. 3(1) of 1993 affirming the conviction and sentence passed by the learned CJM in CR Case No. 832 of 1989 convicting the accused petitioner u/s 4 of the Assam Liquor Prohibition Act and sentencing him there under to 3 months simple imprisonment and also pay a fine of Rs. 100 and in default to further 15 days'' simple imprisonment.

I have heard Mr. N Choudhury, learned counsel for the petitioner, and Mr. D Saikia, learned PP, Assam. I have also considered the records of the case.

The prosecution case in brief is that on 25.9.1987 at about 9 A.M. Shri N. Ahmed Inspector of Excise, Dhubri had been to Sapatgram bazar to carry out excise raid. At Sapatgram bazar, he searched the dwelling house of the accused petitioner and recovered about 5 liters of cholai, liquor contained in a plastic jaricane therefrom. He seized the liquor in presence of witnesses and took a sample from the seized liquor in a separate bottle which he got examined by the Chemical Examiner, Assam who opined that the sample to be alcoholic liquor having alcoholic strength of 9.57% v/v. During the trial learned Magistrate examined 3 witnesses, all the departmental personnel. After considering the evidence on record and after hearing the learned counsel for the parties, the learned Magistrate convicted and sentenced the accused petitioner as stated above. Being aggrieved, the accused petitioner preferred an appeal before the learned Sessions Judge. By the impugned order dated 15.7.1993 the learned Sessions Judge dismissed the appeal and confirmed the conviction and sentences passed by the learned Magistrate. Hence, this revision before this court.

Mr. N. Choudhury, learned counsel for the petitioner has raised a preliminary point of law and has submitted that the investigation could not have continued after the period of six months from the date of arrest of the accused in view of sub-section (5) of Section 167 Cr.P.C. and in the absence of an application by the investigating police officer to satisfy the court that for special reasons and in the interest of justice the continuation of investigation beyond six months was necessary. Mr. Choudhury submits, that being the position, the trial of the accused was without jurisdiction and the conviction and sentence awarded to him are liable to be set aside. In the instant case admittedly, the accused was arrested on 21.9.87 and the investigation was completed and chargesheet was submitted only on 5.4.89 far beyond the period of six months specified in sub-section (5) of Section 167 Cr.P.C. and the I.O. did not file any application for continuation of investigation beyond the period six months. On this point Mr. Choudhury, learned counsel for the petitioner, has placed reliance on the decision in State of Tripura y. Sri Naranjit Singha & another (I) 1 GLR 231 wherein it has been held :

"In my opinion the mandate of the legislature in respect of subsection (5) of section 167 Cr.P.C. is clear and in cases triable under summons procedure the investigating agency must complete the investigation within a period of six months from the date of arrest of the accused failing which the Magistrate is legally bound to stop further investigation. If the investigating agency wants to proceed beyond the period of six months it must make an application before the court within the aforesaid period and the court may allow after applying its judicial mind continuance of investigation beyond the above period provided the court is satisfied that there are special reasons and that for ends of justice such continuance of investigation is necessary. Any other interpretation, in my opinion, will make the provision nugatory and it will go contrary to the intention of the legislature. In my opinion, in any case triable by a Magistrate as a summons case the requirement of sub-section (5) of Section 167 must be fulfilled before the Magistrate can take cognizance. I hope and trust that both the trial courts and the investigating agency will and scrupulously follow the mandate of the legislature as laid down in the above provisions of law.

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Coming back to the case in hand, it is an admitted fact that the charge sheet was submitted after six months of the arrest of the accused persons. There is nothing on record to show that any prayer was made by the Investigating Agency for extending the period of investigation. The prosecution also did not take recourse to sub section (5) of Section 167 Cr.P.C. In view of the above circumstances and what has been stated above regarding interpretation of sub-section (5) of section 167 Cr.P.C. I am of the opinion that the order 10.12.1984 was legally passed by the learned CJM and it need not be interfered with."

In the instant case also, admittedly the charge-sheet was submitted after six months from the date of arrest of the accused and there is nothing to show that any prayer was made by the Investigating Agency for extending the period of investigation. That being so, the proceedings and the conviction and sentence awarded by the learned Magistrate are set aside and the impugned order passed by the learned Additional Sessions Judge is also set aside.

The appeal is allowed and the petitioner stands discharged from the bail bond.