IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3059 of 2009 NAGENDRA KUMAR, S/O SRI RAMASHISH ROY, R/O MOHALLA CHAKARAM, P.S. BUDHA COLONY, DISTRICT- PATNA. ……PETITIONER. Versus STATE OF BIHAR ……OPP. PARTY. ----------- For the Petitioner:- Mr. Mahesh Prasad no. 2, Adv. Mr. Rewti Kant Raman, Adv. Mr. Gopal Saran. For the State:- Mr. Abhimanu Sharma, A.P.P. 10 08.04.2011 Heard learned counsel for the petitioner and for the State. This is an application under Section 482 of the Criminal Procedure Code, seeking quashing of order dated 05.08.2008, passed by the learned Chief Judicial Magistrate, Patna, in Kotwali P.S. Case No. 175 of 2008 taking cognizance against the petitioner under Section 47A of the Excise Act. The brief facts of this case is that the Officer-in- Charge of Kotwali P.S. on getting information about sale of country made wine conducted raid found some articles and other connected materials besides some cash etc. On self statement, the case is instituted but simultaneously, entrusted the investigation to A.S.I., Gurudeo Rajak, who after investigation submitted charge sheet, whereupon cognizance - 2 - has been taken. The only question involved in this case whether an A.S.I. can investigate the case under Section 47 of the Excise Act, submit charge sheet whereon cognizance can be taken or not. To determine the solitary point State counsel was given several opportunities to produce any Government notification authorizing the A.S.I. to do so, but there is nothing of the kind with the record. Earlier similar point was raised before this Court in a case of Kamla Devi versus State of Bihar, 1994(2) East Cr.C 358(Patna), wherein taking into consideration the provisions as contemplated under Section 87 of the Bihar Excise Act which reads as such. “87. Initiation of certain prosecution- No Magistrate shall take cognizance of an offence referred to- (a) in section 47, section 49, section 55, or section 56, except on his own knowledge or suspicion or on the complaint or report of an Excise Officer or an officer empowered in this behalf by the State - 3 - Government, or (b) in section 57, section 61, clause(d) or clause (e), or section 62, except on the Complaint or report of the Collector or an Excise Officer authorised by the Collector in this behalf.” It has been held that an A.S.I. is not authorized to do so. My attention was further drawn towards decision of this Court in a case of Lakshmi Narayan and another versus State of Bihar and another 1995(1) PLJR 843, wherein the earlier decision of this Court (Supra) has also been discussed but since in this case subsequent investigation was done by an Officer-in-Charge, i.e. Inspector of Police, the earlier decision was held not applicable. But such distinction is not available here. In the instant case, investigation has been done, of course at the direction of the Officer-in-Charge but by an A.S.I. of Police the earlier decision in the case of Kamla Devi comes into play, as being consistent view of this Court, also referred and relied upon in a case of Akthar Ali and another versus State of Bihar, BBCJ, 2010(2)-V-253, wherein - 4 - similar point was involved. On careful perusal, I find that since in the instant case investigation was done by an A.S.I. of Police who has submitted charge sheet and cognizance has been taken thereon it is not sustainable under law. Consequently impugned order is set aside. Accordingly, this application stands allowed. AFR/ Bhardwaj (Akhilesh Chandra, J.)