State Of Jammu & Kashmir @APPELLANT@Hash Sham Singh

The instant appeal has been filed under Section 417 Cr.P.C against the judgment dated 14.07.2007 passed by the learned Sub-Judge, Reasi by

virtue of which the accused Sham Singh was acquitted.

In the memo of appeal is it stated that an FIR No.27 of 2007 was registered at Police Station, Reasi for offence under Section 48 Excise Act. On

investigation, 24 bottles of liquor were seized from the possession of the respondent at Bus Stand Ransoo. The possession was found unlawful and

illegal. After completing the investigation, the challan was presented in the Court of Sub Judge, Reasi. The prosecution produced eight witnesses. The

court has acquitted the respondent vide judgment dated 14.07.2007. It is further stated that the judgment of acquittal is primarily based upon the

technical ground as to the competency of the Investigating Police Officer. The Court failed to take notice of the Government Order No.52-E of 1959

dated 27.11.1959 whereby a police officers in charge of Police Stations or attached to them, not below the rank of Sub Inspector, are vested with

powers exercisable by an Excise Inspector under Excise Act of Samvat, 1958. The trial court further committed illegality by not appreciating the

prosecution evidence pertaining to the seizure and recovery of the liquor from unauthorized possession of the respondent. It is, therefore, prayed that

the appeal may be allowed and the order impugned may be set aside.

I have considered the submissions of Mr. Raman Sharma, learned Dy AG and have also gone through the order of court below and perused the

record.

From perusal of the impugned judgment dated 14.07.2007, it appears that on 07.02.2006, Incharge Police Post Pouni received an information

from a reliable source that accused Sham Singh indulged in illegal sale and is in possession of liquor at Ransoo. Police Party proceeded to Bus Stand

Ransoo wherein accused was found carrying 24 bottles of liquor (XXX Rum). Accused failed to count for such possession of consignment of liquor

and accordingly, FIR No.27/2007 for offence u/s 48 Excise Act was registered at Police Station Reasi against the accused and the accused was

arrested. After completion of investigation, challan was produced before the court below and during course of trial, prosecution examined Ct. Balbir

Singh, H.C Raj Kumar, PW-Romesh Singh, Ct. Amrit Lal, PW-Ghulam Mohd, SPO Makhan Lal, Ct. Mohd Akram besides I.O Mohd Tasbeer.

After conclusion of trial, court below without commenting upon the statements given by the witnesses, dismissed the challan on the ground that the

mandatory provision of Section 30 of the Excise Act has not been complied with and the investigation was not conducted in lawful manner.

I have given my thoughtful consideration to whole aspect of the matter and law on the subject. Certain sections of Excise Act are necessary to

decide the matter. It is apt to reproduce Section 30 of Excise Act as under:-

“Section 30. Offenders may be arrested and contraband liquor andarticles seized, without warrant.

(1)Any (Excise and Taxation Officer), any Police Officer not below the rank of (Head Constable) and any other person (or class of persons) duly

empowered by the Government in this behalf may arrest without warrant any person found committing an offence punished under (section 48, Section

50 or Section 50-A) and may seize and detain any liquor, drug or other article which he has reason to belief to be liable to confiscation under this Act

or any other such law and may detain and search any person upon whom, and any vessel, raft, boat, vehicle, animal, package, receptacle or covering

in or upon which, he may have reasonable cause to suspect any such liquor or drug or other such article to be or to be concealed.

(2)Any person other than an (Excise and Taxation Officer) lawfully arresting a person shall immediately take him along with liquor, drug, or other

article so seized or detained before the nearest (Inspector Excise and Taxation) who shall at once take charge of the accused and the articles so

seized or detained. The time taken in brining the accused to the (Inspector Excise and Taxation), shall not be included in the period of twenty-four

hours prescribed by Section 37. The (Inspector Excise and Taxation) on taking charge of the accused shall hold such enquiry as he may think

necessary.

Provided that the (Deputy Commissioner) may of his own motion or on the application of the accused transfer the case for enquiry to any other

officer not below the rank of an Inspector under him and such officer shall be deemed to have arrested the accused and shall proceed in the aforesaid

manner.

(3)(i) Every (Excise and Taxation Officer) making an enquiry as aforesaid shall day by day enter his proceedings in the enquiry in a diary, setting forth

the time at which the information reached him, the time at which he began and closed his enquiry, the place or places visited by him and a statement

of the circumstances ascertained through his enquiry.

(ii) Any criminal court may send for such diaries of a case during the course of an enquiry or trial in such court, and may use such diaries, not as

evidence in the court but to aid in such English or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they

be entitled to see them merely because they are referred to by the court, but if they are used by the Excise Officer who made them to refresh his

memory, or if the court uses them for the purpose of contradicting such Excise Officer, the provisions of the Evidence Act, contained in section 161,

or section 145, as the case may be, shall apply.)

(4)The Government may be a general or special notification, invest any police officer-in-incharge of a police station or attached to it, not below the

rank of a sub-inspector with powers exercisable by an Excise Inspector under the Excise Act.)â€​

From the bare perusal of this section, it is evident that whenever a police officer not below the rank of HC of Police arrests a person without

warrant and seize the material, and if said accused is found to have committed offence u/s 48 of Act, said accused person has to be immediately

taken along with liquor, drug, or other article so seized or detained before the nearest Inspector Excise and Taxation, who shall at once take charge of

the accused and the articles so seized or detained. Thereafter Inspector Excise and Taxation on taking charge of the accused shall hold such

enquiry as he may think necessary. Further Govt. may by general or special notification invest any police officer-in-charge of police station or

attached to it, not below the rank of Sub Inspector with powers exercisable by an Excise Inspector under Excise Act.

Section 36 of Excise Act reads as under:-

“36. Arrested persons to be taken before a Magistrate.

An (Excise and Taxation Officer) arresting a person under this Act, or who has taken charge of the accused under sub-section (2) of section 30, shall

without unnecessary delay and subject to the provisions hereinafter contained as to bail, take the person arrested before a (Judicial Magistrate) having

jurisdiction to try the case.â€​

Section 37 of Excise Act reads as under:-

“Section 37. Period of detention not to exceed twenty four hours. An (Excise and Taxation Officer) arresting a person under this Act, or who have

taken charge of the accused under sub-section (2) of section 30, shall not detain him in custody for a longer period than under all the circumstances of

the case is reasonable and subject to the provisions of section 30 such period shall not in the absence of a special order of a Magistrate passed under

section 40 exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.â€​

Section 38 of Excise Act reads as under:- Â

“Section 38. Certain offences to be non-bail able and triable summarily.

Notwithstanding anything contained in (XXX) the Code of Criminal Procedure, 1989__

(i) The offences specified in clauses (b), (d) and (e) of (section 48 and sub-section (1) of Section 50) shall be non-bailable and

(ii) The offences specified in sections 48,49,50,50-A,50-B and 55 and sub-section (1) of section 56 shall be triable summarily.â€​

Section 40 of Excise Act reads as under:-

“Section 40 Procedure where enquiry cannot be competed in 24 hours

(1) Whenever any person is arrested under this Act and detained in custody and it appears that an enquiry into the offence of which such person is

accused cannot be completed within the period of twenty four hours prescribed by section 37, the (Deputy Commissioner) or the officer making the

enquiry, as prescribed in sub-section (2) of section 30, shall forward to the nearest Magistrate a report setting forth the circumstances in which the

accused was arrested together with the information which is yet to be elicited and shall lat the same time forward the accused to such Magistrate.

Remand.-(2) The Magistrate to whom an accused person is forwarded under sub-section (1) may, whether he has or has not jurisdiction to try the

case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days on

the whole. If he has not jurisdiction to try the case and considers further detention unnecessary he may order the accused to be forwarded to a

Magistrate having such jurisdiction;

Provided that no Magistrate other than a Magistrate of the first class shall authorize detention in any custody other than a judicial lock-up.

(3)Â A Magistrate authorizing under this section detention in any custody other than a judicial lock-up shall record his reasons for so doing.

Section 45 reads as under:-

“Section 45 -Case to be sent to Magistrate when evidence is sufficient.

(1)(a)If upon an enquiry under this Act it appears to be (Deputy Commissioner) or the officer holding the enquiry that there is sufficient evidence,

such officer shall forward the accused under custody to a (Judicial Magistrate) competent to try the case of if the offence is bailable and the accused

is able to give security, shall take security from him for his appearance before such (Judicial Magistrate) on a day fixed and for his attendance from

day to day before such (Judicial Magistrate) until otherwise directed and shall also forward to such (Judicial Magistrate) a report setting forth the

names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case and

stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and if so with or without sureties.

(b) Such (Judicial Magistrate) shall take on such report cognizance of the offence charged.

(c) The accused on his application shall be entitled at his own cost to a copy of such report before the commencement of the trial…..â€​

From the perusal of these above sections, it is evident that a complete procedure has been laid down for conducting inquiry, arrest, remand and

presentation of report before Magistrate for prosecution of offender in such like cases.

Section 5 of Cr.P.C. reads as under;-

“5.Trial of offences under Ranbir Penal Code.- (1) All offences under the Ranbir Penal Code shall be investigated, inquired into, tried and

otherwise dealt with according to the provisions hereinafter contained. (2) Trial of offence against other laws.- All offences under any other lawshall

be investigated, inquired into, tried and otherwise dealt withaccording to the same provisions, but subject to any enactment for thetime being in force

regulating the manner or place of investigating,inquiring into, trying or otherwise dealing with such offences.â€​

This section also mandates that all offences under any other laws beside RPC shall be investigated, inquired into, tried and otherwise dealt with

according to Cr.P.C, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or

otherwise dealing with such offences.Â

Excise Act is special Act and as already noted above, it provides its own procedure for prosecution of cases under this Act. Police in general is

nowhere mentioned in the Act to investigate the matter for offences under Excise Act except when specially empowered in this regard by Govt. by

general or special notification, that too to police officer not below the rank of Sub-Inspector as per section 30(4) of Act. In present case, the

investigation has been conducted by ‘Head Constable’ of Police Station Reasi, who was neither competent under Act to conduct

investigation nor he was invested with power ofExcise Inspector by Government by a general or special notification.Â

In view of above, there is no infirmity of law in the judgement of court below, which is up-held accordingly. Instant appeal is dismissed.