Ramesh vs State of Madhya Pradesh and Others

K.K. Varma, J,

Applicant Ramesh, non-applicant no. 2 Jaswant Singh and non-applicant no. 3, Lachhman, were discharged by the Judicial Magistrate First Class Mungaoli (Camp Chanderi) in Criminal Case No. 98/81 (State through Chanderi Police v. Jaswant Singh & others) instituted on a charge-sheet filed by the Police. According to the charge-sheet and the connected papers, the accused had been transporting amongst other things 130 bags of Mahua.

In passing, I am not referring to the other articles seized in the case because they are not material for the purposes of the present revision proceeding. The charge-sheet alleged that the offence was punishable u/s 36 of the M. P. Excise Act, 1915.

The learned Magistrate held that the papers disclosed an offence made up a breach of Rule 4 (2) of the Mahua Rules punishable u/s 37 of the M. P. Excise Act, and not any offence punishable u/s 36 of the M. P Excise Act. It was further held that the accused could not be charged u/s 37 of the M. P. Excise Act as well, because the prosecution for that offence has to be made subject to the limitations contained in subsection (1) of 61 of the M. P. Excise Act, 1915. Accordingly, the learned Magistrate discharged the three accused persons.

The aggrived State filed a revision against the impugned order. The learned Additional Session Judge, Ashok Nagar allowed the revision. 9/22) by his order dated 7-3-1982. The learned Additional Sessions Judge dealt with the matter in a most perfunctory manner. All that he said in support of his order was as follows :

The learned Addl. Sessions Judge disposed of the learned trial Magistrate''s finding about the applicability of the Section 37 of the M. P. Excise Act by making a similar assertion J

Now, Section 36 of the M. P. Excice Act, 1915, runs as follows;

Penalty for illegal possession.--Whoever, without lawful authority, has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected knowing the prescribed; duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.

(Emphasis supplied.)

Thus, the provisions of Section 36 provide punishment for illegal possession of any quantity of any intoxicant in the circumstances set out in the Section.

Sub-section (11-a) of Section 2 of the M. P. Excise Act, 1915, defines ''-an intoxicant" as follows :

"Intoxicant" means any liquor or intoxicating drug.

Sub-section (12) of Section 2 of the M. P. Excise Act, 1915, defines "Intoxicating drug" as follows :

(12)" "Intoxicating drug" means -

(i) the leaves, small stalks and flowering or fruiting topos of the Indian hemp plant ("cannabis sative") including all forms known as "bhang", "sindhi" or "ganja";

(ii) omitted;

(iii) any mixture, with or without neutral matarials, of any of the above forms of intoxication drug, or any drink prepared thereform; and

(iv) any other intoxicating or narcotic substance which the State Government may, by notification, declare to be and intoxicating drug, such substance not being Narcotic drug as defined in the Narcotic Drug and Chotropic Substance Act, 1985 (No. 16 of 1857).

It is, therefore, clear that mahua is not an "intoxicant" within the meaning of expression under sub-sections (11-a) and (12) of Section 2 of the M. P. Excise Act. Hence, the learned Magistrate was right in concluding that no offence punishable u/s 36 of the Act was made out though the learned Magistrate gave no reasons for his conclusion.

Section 37 of the M. P. Excise Act, 1915, provides for the imposition of penalty on a person who is guilty of any act or intentional omission in contravention of any of the provisions of the Act, or of any rule, notification or order made issued or given thereunder and not otherwise provided for in the Act.

The State Government of Madhya Pradesh has made the Madhya Pradesh Mahua Rules, 1959, in exercise of the powers conferred by clause (d-1) of sub-section (2) of Section 62 of the Madhya Pradesh Excise Act.

Sub-rule (2) of Rule 4 of the Madhya Pradesh Mahua Rules, 1959, says that no person or head of household on his behalf or on behalf of the members of his household shall in aggregate transport or sell or buy or have in his possession mahua exceeding five kilogram in weight except under the authority and subject to the conditions of a licence, permit or pass granted by or an authorised officer.

According to the learned Magistrate there was a breach of Rule 4 of the M. P. Mahua Rules. 1959, punishable u/s 37 of the M. P. Excice Act, 1915 However, he was of the view that the accused could not be charged even in respect of this breach in the light of the provisions of Section 61 of the M. P. Excise Act, 1915.

Clause (a) of sub-section (1) of Section 61 runs as follows :

Limitation of prosecutions. - (1) No Court shall take cognizance of an affiance punishable--

(a) u/s 37, Section 38, Section 8-A, Section 39, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorised by the Collector in this behalf.

The intstant case started on a Police cballan and not on a complaint or report of the Collector or an Excise Officer not below the rank of District Officer as may be authorised by the Collrctor in this behalf. As such the learned Magistrate was justified in not taking cognizance of the case in view of the provisions contained in clause (a) of sub-section (1) of Section 61 of the M P. Excise Act, 1915.

In the result, the order dated 7-3-1988 of the learned Additional Sessions Judge, Ashok Nagar, in Criminal Revision No. 9/82 is hereby set aside and the order dated 8-2-1982 passed by the learned Magistrate in Criminal Case No. 98/81 discharging the present applicant and non-applicants 2 and 3 is hereby restored.

The revision is hereby allowed.