Sudarshan Kundu vs State

Mitter, J.—This Rule is. directed against a conviction and sentence u/s 225 of the Indian Penal Code. The charge against the Petitioner was that he had rescued a person from the lawful custody of an Excise Peon who had arrested the offender for unlawful possession of a bottle of illicitly distilled liquor which is an offence u/s 52 of the Bengal Excise Act, 1909. This Rule is restricted to the question whether the arrest of the offender by the Excise Peon was illegal.

Mr. Sambhu Nath Banerjee for the State has contended that the Excise Peon concerned was an officer of the Excise Department and that accordingly he had power to arrest without warrant any person found committing an offence punishable u/s 46, Section 48, Section 52 or Section 53 of the Act. In support of his contention Mr. Banerjee has referred us to the definition of an Excise Officer which u/s 2(9) means any officer or other person appointed or invested with powers u/s 7 of the Bengal Excise Act, 1909. u/s 7(2)(c)a State Government may, by notification, appoint officers of the Excise Department, of such classes, and with such designations, powers and duties, as the State Government may think fit. Section 85 gives power to the State Government to make rules. Section 85(2)(k) provides for making rules for restricting the exercise of any of the powers conferred by, inter alia, Section 67. By virtue of para. 11(3)(c) of an appropriate notification, Excise Peons are made officers of the Excise Department. Thus under para. 11(3)(c) of the relative notification, read with Rule 81 of the Excise Rules, an Excise Peon has power to arrest an offender without warrant though this power can only be exercised in open places. In our view, the Excise Peon concerned was an Excise Officer and he had authority to apprehend a man without warrant found to be in illegal possession of liquor and any one rescuing the offender from such custody was guilty of an offence u/s 225 of the Indian Penal Code.

We must, in the result, hold that the Petitioner was rightly convicted. As to sentence, we think that the ends of justice will be met by reducing the sentence of imprisonment to the period already undergone. Subject to this modification as to sentence, this Rule is discharged.

Bhattacharya, J.

I agree.