Shankar Prasad Choudhary and Others vs State of Bihar

Chaudhary Sia Saran Sinha, J.—The petitioners, two in number, petitioner No. 2 being a licensee and petitioner No. 1 being his salesman, have filed this criminal miscellaneous case for quashing the criminal proceedings started against each of them u/s 47(a) of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as the ''Act''), cognizance whereof was taken by the Chief Judicial Magistrate on 28-11-75.

After cognizance was taken on 28th November, 1975, the Sub-Divisional Judicial Magistrate transferred the case to the file of another Judicial Magistrate, Second Class for disposal on the same day. On the 14th of February, 1976, the petitioners filed a petition before the trial court stating that inspite of the absence of any sanction from the State Government cognizance was taken in this case beyond the period of limitation prescribed and as such the prosecution being bad in law, it cannot legally lie and the petitioners should, therefore, be discharged.

By the impugned order dated 25-6-1976 and for reasons stated therein, this prayer of the petitioners was rejected and it is this order (hereinafter referred to as the ''impugned order'') which the petitioners have taken up before this Court u/s 482 of the Code of Criminal Procedure, 1973 (the new Code) for quashing the criminal proceedings by setting aside the impugned order.

The only contention raised was that the cognizance having been taken beyond the period of limitation, the criminal proceeding started against the petitioners was bad in law and was fit to be quashed. This contention has substance and it must prevail. Section 78(4) of the Act states, inter alia, that as soon as an investigation by a Collector or by an Excise Officer empowered as mentioned in that Sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, shall submit a report, which, for the purpose of Section 190 of the new Code, shall be deemed to be a police report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police report. Section 96 of the Act lays down provisions for limitation of a prosecution. It states, inter alia, that except with previous sanction of the State Government, which undisputedly has not been obtained in this case, no Magistrate shall take cognizance of any charge made against any Excise Officer under this Act or any other law relating to the excise revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act complained of.

The charge against the petitioners is u/s 47-A of the Act. The occasion for the charge arose in the following way:

Petitioner No. 2 is a licensee of excisable goods. On 20-5-1975 the Excise Inspector made inspection of the shop of petitioner No. 2 and found him in possession of 33 bottles of foreign liquors. He then submitted a report for the prosecution of the petitioners which appears to be dated 19-11-75. This report was put up before the Chief Judicial Magistrate on 28-11-75 and he took cognizance as stated above on the same date. There is an endorsement presumably by the Sub-Divisional Judicial Magistrate on the report dated 19-11-75 showing its receipt on 28-11-75.

The impugned order shows that a dak-book was produced before the trial court showing the receipt of the prosecution report in the office of the Sub-Divisional Judicial Magistrate on 20-11-1975. In face of the endorsement appearing on the report itself obviously showing its receipt on 28-11-75, the entry in the dak-book referred to in the impugned order, even if any, cannot be relied upon particularly when no affidavit has been sworn in to support either the existence of the dak-book or any entry made therein. In such circumstances, there can be no difficulty in coming to the conclusion that the report, which was presented before the Sub-Divisional Judicial Magistrate on 28-11-75, was clearly beyond time and the Learned Counsel for the State very reasonably conceded to the legal position. In the facts and circumstances of the case, it is not necessary to decide as to whether mere filing of the report in the office of the Sub-Divisional Judicial Magistrate would or would not amount to an institution of a case as contemplated in Section 96 of the Act.

In support of his contention the Learned Counsel for the appellant relied upon an unreported decision of this Court in State of Bihar v. Dharmmdra Kumar Jaiswal Government appeal No. 49 of 1969, disposed of on 27th of August, 1974, which supports his contention.

The result is that this criminal miscellaneous is allowed, the impugned order is set aside and the criminal proceeding in question is quashed.