Yaseen and Others vs The State of Karnataka

K.N. Phaneendra, J.—1. As these two petitions arise out of common question of law and almost similar facts are involved, they are taken up together for disposal.

The brief facts arising out of these two petitions are that -

"On 28.12.2014 at between 20.35 and 22.00 hours respectively, the Sub Inspector of Police, Devar Hipparagi has visited the Hotel belonging to the petitioners and found that the petitioners were providing liquor to the customers in the said hotel without there being any licence or permit obtained from the competent authority. On that ground the police have registered a case under section 32(3) of the Karnataka Excise Act (hereinafter referred to as ''KE Act'' for short) and seized certain articles from the hotel of the petitioners and ultimately filed a charge-sheet."

The learned Civil Judge and JMFC, Sindagi in fact has taken cognizance and issued process against the petitioners. Being aggrieved by the said orders and also the proceedings before the JMFC Sindagi in C.C. Nos. 342/2015 and 343/2015 respectively, the petitioners have approached this Court for quashing of the entire proceedings in the said cases.

The sole ground on which the petitioners have approached this Court is that though the cases were registered under sections 15-A and 32(3) of the KE Act, the charge-sheet was filed only for the offence punishable under section 32(3) of the Act. As rightly contended by the learned counsel for the petitioners that contravention of Section 15-A of the KE Act is not a substantive offence but it is a definition provision. The contravention of Section 15-A of the Act is punishable under Section 32(3) of the Act. It is mainly contended before the Court that the offence under section 32(3) is punishable with fine which shall not be less than Rs. 200/- but which may extend to Rs. 5,000/-.

It is contended by the learned counsel that the said offence is a non-cognizable offence and no investigation could have been done by the police without prior permission under section 155(2) of Cr.P.C. and no charge-sheet could be entertained by the JMFC for the said offence.

Per contra, learned High Court Government Pleader submitted that Section 52 of the KE Act empowers Excise Inspector or the Police Officer to arrest a person without warrant and to seize any article which is liable for confiscation and make searches and thereafter a report has to be submitted as per Section 55 of the Act and in such eventuality the learned Magistrate having jurisdiction may take cognizance of the offence and to proceed with the case. Therefore, it is submitted that the Police Officer or the Excise Officer is authorised under Sections 52 and 55 of the Act to arrest, search and seize the articles during the course of investigation. The offence under KE Act as deemed to be cognizable offences. Therefore, he contends that when a Police Officer or Excise Officer can arrest the accused without a warrant, it satisfies the definition of cognizable offence as per the Code of Criminal Procedure. Hence, the investigation done under the Excise Act and cognizance taken by the learned Magistrate is in accordance with law. Hence, the petitions are liable to be dismissed.

Section 52 of the Act mainly refers to the power of arrest without warrant, to seize articles liable for confiscation and to make searches, which reads as follows:

"52. Power to arrest without warrant, to seize articles liable for confiscation and to make searches-(1) Any Officer of the State Government [employed in the Excise Department, or any Officer of the Police or Revenue Department empowered by the State Government in this behalf subject to such restrictions as may be prescribed, may,-

(a) arrest without warrant any person [for] an offence punishable, under Section 32, Section 33, Section 34, Section 36 or Section 37;

(b) Seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force, relating to excise revenue; and

(c) Detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be.

(2) When any person is accused or is reasonably suspected of commuting an offence under this Act, other than an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 and on demand of any such Officer as aforesaid, refuses to give his name and residence or gives a name and residence which such Officer has reason to believe is false, he may be arrested by such Officer, in order that his name and residence may be ascertained."

(Emphasis supplied)

This provision empowers the Officer of the State either of Excise department or Police department or Revenue department to arrest without warrant any person who has committed any of the offences punishable under Sections 32, 33, 34, 36 or 37 and seize and detain such excisable articles, and seize any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect. Therefore, it is clear that the Police Officer or the Excise Officer can arrest the persons when allegations are made against the persons concerned under Section 32 of the Act.

Section 54 of the KE Act also empowers the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an Officer-in-charge of a Police Station or any Excise Officer not below such rank, as may be prescribed, has reason to believe that an offence under section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief, can search, arrest and detain a person without warrant.

Section 55 of the KE Act empowers the Excise Officers in the matters of investigation. This provision reads as follows:

"Powers of Excise Officers in matters of investigation.--(1) Any [Inspector of Excise or a Sub-Inspector of Excise] or any Excise Officer not below such rank and within such specified area as the State Government may, by Notification prescribe, may as regards offences under Section 32, Section 33, Section 34 [Section 35, Section 36, Section 37, Section 38 or Section 38-A] exercise powers conferred on an Officer-in-charge of a Police station by the provisions of the [Code of Criminal Procedure, 1973:]

Provided that any such power shall be subject to such restrictions and modifications, if any, as the State Government may prescribe.

(2) For the purposes of Section 156 of the said Code, the area in regard to which an [Inspector of Excise or a Sub-Inspector of Excise or an Excise Officer] is empowered under sub-section (1), shall be deemed to be a Police Station and such officer shall be deemed to be the Officer-in-charge of such station."

On perusal of this provision it empowers the Excise Officer who is authorised by the Government to exercise the powers of a Police Officers as provided under Section 156 of the Code of Criminal Procedure and for all practical purposes the Officer of the Inspector of Excise or Sub-Inspector of Excise or Excise Officer shall deemed to be a Police Station and such officer is deemed in-charge of that Police Station. This particular provision is only with reference to the Officers entrusted with the power to investigate the matter under section 156 of the Code of Criminal Procedure. Simply it can be said that these provisions empower the Excise Officer who is authorised to exercise all powers of the Police Officer as contemplated under Section 156 of the Code of Criminal Procedure. In fact, Section 156 of Cr.P.C. refers to investigation into cognizable offences and it does not speak about investigation of non-cognizable offences

If any investigation is done with reference to the above said offences, the report has to be submitted to the Court under section 56 of the KE Act. If any such report is submitted under section 56 of the KE Act, that should be before the learned Magistrate having jurisdiction to enquire into and try the case and to take the cognizance of the offence under section 190 of Code of Criminal Procedure.

Of course, the above said provisions makes abundantly clear that under section 55 of the KE Act, an Excise Officer or the Police Officer are empowered to investigate the offences punishable under sections 32, 33, 34, 36 and 37 of the KE Act. The investigation is in the capacity of in-charge of a Police station as required under section 156 of Code of Criminal Procedure. The authorized Officer after completing the investigation with regard to offence punishable under sections 32, 33, 34, 36 or 37 can submit his report to the learned Magistrate having jurisdiction and that report shall form the basis to decide whether he should or should not take cognizance of the offence reported.

It is relevant to refer Section 155(2) of Cr.P.C. which reads thus -

"(2) No Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial"

Now the question arose before this Court is that whether the investigation could be done without resort to Section 155(2) of the Code of Criminal Procedure. Whether mere authorisation to the Excise Officer or Police Officer to arrest a person without warrant can convert a non-cognizable offence into cognizable offence.

It is evident from the Schedule-II appended to the Code of Criminal Procedure which defines classification of offences against other laws wherein the said Code says that the offences which are punishable less than three years or with fine only those offences shall be categorised as non-cognizable, bailable offences and triable by any Magistrate. The offence under section 32 (3) of the KE Act, is invoked by the police in this case is punishable with fine only. Therefore, as per the Schedule-II of Code of Criminal Procedure, the above said offence falls under the category of non-cognizable offence.

The learned counsel for the petitioners and the learned High Court Government Pleader with all responsibility and after going through the K.E. Act, submitted that there is no provision under the Excise Act which classifies the offence under Excise Act either as cognizable and non-cognizable offences, particularly Section 32(3) of the KE Act is not declared as a cognizable offence as per the Excise Act. Therefore, for all practical purposes to ascertain whether it is cognizable offence or non-cognizable offence, the Court has to fall back upon the second schedule appended to Code of Criminal Procedure. Therefore, as per Schedule-II the offence punishable under section 32(3) of the KE Act, particularly falls under the category of non-cognizable offence.

So far as it relates to the legal aspect of the case is that, whether the empowerment to the Police Officer or the Excise Officer to arrest a person without warrant is sufficient to constitute the said offence as cognizable one, has to be considered. Of course, the definition of "Cognizable offence" as per Code of Criminal Procedure under section 2(c) means an offence for which, and "cognizable case" in which the police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. The above said question fell for consideration of this Court wherein similar provision under section 78(3) of the Karnataka Police Act which empowers the Police Officer to arrest a person without warrant has been considered. Specifically answering a question as to whether the empowerment to arrest a person without warrant under the Police Act is sufficient to declare such an offence as cognizable offence or not. This Court by a detailed Judgment with regard to legal aspects, laid down a principle in a case law reported in , 2014 (4) KCCR 3355 in a case of Moin Basha Kurnooli v. The State of Karnataka by Cowl Bazaar Police Station, Bellary in the following manner.

"On plain reading of the section 78(iii), it is crystal clear that the said offence falls under II Schedule to Cr.P.C. and it is clearly a non-cognizable offence. Depending upon the nature and gravity, need and urgency to empower the police officer to arrest the person without warrant, search, seize certain articles, the Police Act empowered the police officer clothing with the power to arrest a person without warrant. Therefore, at any stretch of imagination, the entrustment of such power of arrest without warrant cannot be called as unfettered and general power in nature, in order to convert a non-cognizable offence into a cognizable offence under the Karnataka Police Act."

Coming back to the facts of this case, it is clear that Section 32(3) of KE Act, which is invoked, is punishable with fine only. As per Schedule-II of the Code of Criminal Procedure, this offence is categorised as a non-cognizable offence. Therefore, as rightly contended by the learned counsel for the petitioners, the police ought to have taken permission from the jurisdictional Magistrate under section 155(2) of Code of Criminal Procedure in order to investigate and submit report. As the investigation being conducted without permission of the learned Magistrate, all subsequent acts of investigation such as submitting of the report either under Section 173 of Cr.P.C. or under Section 56 of the K.E. Act, and the learned Magistrate taking cognizance are hit by Section 155(2) of Code of the Criminal Procedure. Therefore, under the above said circumstances, in my opinion the petitions deserve to be allowed and consequently the proceedings pending before the jurisdictional Magistrate deserves to be quashed.

Hence, I pass the following:

ORDER

The Petitions are allowed. All further proceedings in C.C. Nos. 342/2015 and 343/2015 registered against the petitioners pending on the file of JMFC, Sindagi are hereby quashed. Registry is hereby directed to send a copy of the order to the Secretary to the Government Excise Department for future appropriate action and to direct the concerned officers in this regard, who are entrusted with the investigation of cases under the Excise Act.