Jarnail Singh vs State of Punjab

Rajesh Bindal, J.—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.

The challenge in the present petition is to the order dated 26.09.2005 passed by the learned Sub Divisional Judicial Magistrate, Samrala in Criminal Case No. 182/2 arising out of FIR No.72 dated 20.05.2005 registered at Police Station Machhiwara u/s 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 20.05.2005 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 u/s 61/1/14 of the 1914 Act was framed against the petitioner and the case was fixed for prosecution evidence on 03.08.2006. 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 29.08.2006 for further proceedings. It is this order passed by the Court below which is being impugned in the present petition.

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 u/s 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 u/s 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 u/s 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 u/s 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.

Learned Counsel for the State also could not raise any substantive argument to controvert the plea raised by learned counsel for the petitioner. According to him, parallel powers have been conferred on both the authorities and in case the police authorities make the recovery of the liquor, the challan is to be presented in the Court whereas in case the power is exercised by the officers of the Excise Department proceeding u/s 61-A of the 1914 Act would be competent. He referred to the provisions of Punjab Excise Powers and Appeal Orders, 1956 whereby the police officers of the rank of Head Constable and superior in rank thereto have been given powers of an Excise Officer of the First Class. According to him, in terms of this provision even a Head Constable and police officials above the rank of Head Constable could very well exercise the powers of the Excise Officer and check violation of Section 61 or 61-A of the 1914 Act. It is further submitted that in the present case, Head Constable Gurmail Singh of Police Station Machhiwala had recovered 8 bottles of liquor from the petitioner. Accordingly, the impugned order passed by the learned Court below transferring the proceedings to the Assistant Excise and Taxation Commissioner is valid.

Before the respective contentions of the parties is considered, it would be relevant to refer to and consider import of relevant provisions of the 1914 Act and the amendments carried out therein from time to time. Section 61 of the 1914 Act as existing prior to the amendment made vide Punjab Act No. 10 of 2003, after the amendment by Punjab Act No. 10 of 2003, till the amendment vide Punjab Act No. 10 of 2004 with effect from 6.4.2004 and newly inserted Section 61 -A in the 1914 Act by Punjab Act No. 10 of 2003 with effect from 02.05.2003 and the further substituted vide Punjab Act No. 10 of 2004 with effect from 06.04.2004 arc extracted below for reference:-

Section 61 of the 1914 Act as was existing prior to amendment by Punjab Act No.10 of 2003

"61. Penalty for unlawful import, export, transport, manufacture, possession etc. - (i) Whoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made or of any license, permit or pass granted under this Act:-

(a) imports, exports, transports, manufactures, collects, or possesses any intoxicant; or

(b) constructs or works any distillery or brewery; or

(c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari;

shall be punishable for every such offence with imprisonment for a term which may extends to three years and with fine upto twenty-five thousand rupees.

Provided that in the case of an offence relating to the possession of:

(i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five thousand rupees;

(ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees;

(iii) country liquor manufacture otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles each bottle containing 750 Millilitres, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees, and in a quantity exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees;

(iv) foreign liquor other than-

(a) manufactured in a licensed distillery or brewery in India; or

(b) imported into India on which custom duty is leviable under the Indian Tariff Act, 1934, or the Customs Act, 1962.

(c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.

(v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.

(2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. - Whoever in contravention of any section other than Sections 29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act-

(a) sells any intoxicants; or

(b) cultivates the hemp plant; or

(c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or

(d) bottles any liquor for the purposes of sale; or (c) taps or draws tari form any tari producing tree,

shall be punishable with imprisonment for a term which may extend to [two years and line which may extend two thousand rupees].

Section 61 of the 1914 Act as was existing after amendment by Punjab Act No. 10 of 2003

Penalty for offences triable by a court.-(1) Whoever in contravention of any section of this Act, or of any rule, notification issued or given thereunder or order made, or of any li *S*