Kajal Goswami and Others vs State of West Bengal

Lilamoy Ghosh, J.—In a case u/s 46A of the Bengal Excise Act, 1909, the learned S.D.J.M., Asansol discharged the petitioners. Against that there was a motion to the learned Sessions Judge. By his order dated 20-9-1980, the learned Sessions Judge set aside the order of the learned Magistrate and directed him to proceed with the case from the stage as it stood on 19-5-1980.

Against that order of the learned Sessions Judge, the petitioners have filed this revisional application. Mr. Moni Bhusan Sirkar, the learned Advocate for the petitioners, has urged two points. His first point has been that the case as placed, does not disclose any offence under the Excise Act at all. His second point has been that u/s 92 of the Bengal Excise Act previous sanction of the State Government was needed and the prosecution must have been instituted within six months after the date of the act complained of.

Mr. A.R. Saha, the learned Advocate appearing for the State, has supported the judgment and order of the learned Sessions Judge. His contention has been that the petitioners committed an offence u/s 46A(c) of the Act. As to the previous sanction and the necessity of launching the prosecution within six months from offence, his argument has been that the whole section is intended against the prosecution of excise officials.

A little scrutiny of the record makes it clear that no offence u/s 46A of the Excise Act could be shown. The F.I.R. discloses that certain boxes of Golden Eagle beer, Aristocrat whisky, etc., were being carried in the vehicle, namely, the taxi. The seizure list dated 19-9-1979 is in conformity with the statement in the F.I.R. Therefore, what we get is that the petitioners were just carrying Indian made foreign liquors. It is not found how that would be an offence u/s 46A. The relevant provision would be Section 46A(c). That is to the effect that however, in contravention of this Act or of any rule, notification or order made issued or given, or a licence, permit or pass granted under this Act in any way concerns himself in transporting, importing, exporting, etc., or in any other manner deals with spirit or intoxicating drug is guilt, or offence (sic). There is no allegation in the F.I.R. that spirit or intoxicating drug was being carried. In that connection, the learned Advocate appearing for the State has referred to the definition of liquor as occurring in Section 2(14) of the Act. Under that definition clause, liquor means liquid consisting of or containing alcohol and includes spirit or wine, etc. Laying stress on this definition clause Mr. Saha, appearing for the State, has sought to contend that liquor and spirit mean the same thing. I am unable to accept this contention. Spirit is the essential content of liquor but that does not mean that every liquor must be called spirit simpliciter. When Clause (c) of Section 46A of the Act speaks of spirit it must mean spirits simpliciter and not a percentage of spirit contained in some liquor. Every spirit, under the definition, might be called liquor but not vice versa. Therefore, when a penal provision refers to spirit, it must mean spirit simply. The definition clause cannot retrieve the position of the prosecution. That is one aspect of the matter. Secondly, mere carrying spirit even would not make it an offence. Such carrying must be in contravention of this Act or of any rule. It has not been urged nor shown what provision of the Act or rule has been contravened. That being the position, Section 46A(c) does not come into play at all. The facts do not disclose any offence on the face of it. Although this point was not adverted to in the Courts below, it is essential for this Court to consider all the aspects relating to the carriage of the prosecution; for it is fundamental law that lame prosecution should not be allowed to carried. As no offence is disclosed on the face of it, the order of the learned Magistrate discharging the accused petitioners cannot be disturbed.

The ground of want of sanction and not launching the prosecution within six months of the offence is also a valid ground, as admittedly, prosecution was not instituted within six months after the date of the act complained of. No sanction of the Government was also obtained. The learned Sessions Judge is of the opinion that Section 92 applies to excise officials only. I am unable to accept this proposition of law when the section itself makes it clear by using the expression, "or made against any other person under this Act". Undoubtedly the petitioners would come within the category of any other person and undoubtedly the prosecution is instituted against them under this Act. Therefore Section 92 very much comes into play and forms an obstacle to the prosecution of the petitioners. Both the points urged by Mr. Sirkar are upheld.

The result is that the revisional application is allowed. The order of the learned Sessions Judge dated 20-9-1980 in Criminal Motion No. 87 of 1980 is set aside and the order of the Sub-divisional Judicial Magistrate, Asansol is restored. The rule is made absolute.