Criminal Misc. No. 59327-M of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Date of Decision:13.03.2008 1. Criminal Misc. No. 59327-M of 2006 (O&M) Jarnail Singh .....Petitioner Vs. State of Punjab .....Respondent 2. Criminal Misc. No. 56591-M of 2006 (O&M) Darshan Singh .....Petitioner Vs. State of Punjab .....Respondent 3. Criminal Misc. No. 59325-M of 2006 (O&M) Gurbax Singh @ Banti .....Petitioner Vs. State of Punjab .....Respondent 4. Criminal Misc. No. 59967-M of 2006 (O&M) Ram Singh .....Petitioner Vs. State of Punjab .....Respondent 5. Criminal Misc. No. 59969-M of 2006 (O&M) Raj Kumar .....Petitioner Vs. State of Punjab .....Respondent 6. Criminal Misc. No. 59971-M of 2006 (O&M) Gurnam Singh .....Petitioner Vs. State of Punjab .....Respondent 7. Criminal Misc. No. 59973-M of 2006 (O&M) Amrik Singh .....Petitioner Vs. State of Punjab .....Respondent 8. Criminal Misc. No. 59975-M of 2006 (O&M) Gurbax Singh and another .....Petitioners Vs. State of Punjab .....Respondent Criminal Misc. No. 59327-M of 2006 -2- 9. Criminal Misc. No. 59977-M of 2006 (O&M) Ram Singh .....Petitioner Vs. State of Punjab .....Respondent 10. Criminal Misc. No. 59979-M of 2006 (O&M) Gurnam Singh .....Petitioner Vs. State of Punjab .....Respondent 11. Criminal Misc. No. 65940-M of 2006 (O&M) Jeet Singh .....Petitioner Vs. State of Punjab .....Respondent 12. Criminal Misc. No. 72085-M of 2006 (O&M) Jaswant Rai .....Petitioner Vs. State of Punjab .....Respondent 13. Criminal Misc. No. 74003-M of 2006 (O&M) Prem Kumar .....Petitioner Vs. State of Punjab .....Respondent 14. Criminal Misc. No. 78656-M of 2006 (O&M) Kewal Krishan .....Petitioner Vs. State of Punjab .....Respondent 15. Criminal Misc. No. 78671-M of 2006 (O&M) Kewal Krishan .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE RAJESH BINDAL Present:- Ms. A.S. Khurana, Advocate, Ms. Rahish Pahwa Dudeja, Advocate for Ms. Upasna Gupta, Advocate and Mr.P.K. Longia Advocate for the petitioners. Mr. Anter Singh Brar, DAG, Punjab. **** Criminal Misc. No. 59327-M of 2006 -3- RAJESH BINDAL J. This order will dispose of a bunch of petitions, namely, Criminal Misc. Nos. 56591-M, 59325-M, 59327-M, 59967-M, 59969-M, 59971-M, 59973-M, 59975-M, 59977-M, 59979-M, 65940-M, 72085-M, 74003-M, 78656-M and 78671-M of 2006 involving identical question of law with similar facts. The facts are being noticed from Criminal Misc. No. 59327-M of 2006. The challenge in the present petition is to the order dated 26.9.2005 passed by the learned Sub Divisional Judicial Magistrate, Samrala in Criminal Case No. 182/2 arising out of FIR No.72 dated 20.5.2005 registered at Police Station Machhiwara under Section 61/1/14 of the Punjab Excise Act, 1914 (for short, `the 1914 Act'). The facts as stated in the petition are that FIR No.72 was registered against the petitioner on 20.5.2005 under Sections 61/1/14 of the 1914 Act at Police Station Machhiwara with the allegation that 8 bottles of Desi Lal Kila liquor were recovered from the petitioner. The petitioner was arrested and released on bail. Police after investigation presented challan before the learned Illaqa Magistrate. On 25.10.2005, charge under Section 61/1/14 of the 1914 Act was framed against the petitioner and the case was fixed for prosecution evidence on 3.8.2006. On this date, the learned Sub Divisional Judicial Magistrate directed for the return of the challan to the Public Prosecutor in view of the amendment carried out in the 1914 Act vide Punjab Act No.10 of 2003. The petitioner/ accused was directed to appear before the Assistant Excise and Taxation Commissioner, Ludhiana (3) on 29.8.2006 for further proceedings. It is this order passed by the Court below which is being impugned in the present petition. Assailing the order, learned counsel for the petitioner submitted that in the present case, the recovery was made by the police. The investigation was also conducted by them and, thereafter, the challan was presented under Section 173 Cr.P.C before the competent Court and the prosecution of the petitioner started. Accordingly, now at this stage, the impugned order passed by the learned Court below directing the return of challan and ordering the prosecution of the petitioner under Section 61-A of the 1914 Act is totally without jurisdiction. Prior to the amendment made vide Punjab Act No.10 of 2003, only the Courts could try the offences under Criminal Misc. No. 59327-M of 2006 -4- Section 61 of the 1914 Act whereas after the amendment even the officers of the Department of Excise and Taxation have also been conferred the power. The power under Section 61-A of the 1914 Act could be exercised if the detention and a recovery of the liquor is by the excise officials and not where the recovery has been made by the police. Learned Counsel for the State also could not raise any substantive argument to controvert the plea raised by learned counsel for the petitioner. According to him, parallel powers have been conferred on both the authorities and in case the police authorities make the recovery of the liquor, the challan is to be presented in the Court whereas in case the power is exercised by the officers of the Excise Department proceeding under Section 61-A of the 1914 Act would be competent. He referred to the provisions of Punjab Excise Powers and Appeal Orders, 1956 whereby the police officers of the rank of Head Constable and superior in rank thereto have been given powers of an Excise Officer of the First Class. According to him, in terms of this provision even a Head Constable and police officials above the rank of Head Constable could very well exercise the powers of the Excise Officer and check violation of Section 61 or 61-A of the 1914 Act. It is further submitted that in the present case, Head Constable Gurmail Singh of Police Station Machhiwala had recovered 8 bottles of liquor from the petitioner. Accordingly, the impugned order passed by the learned Court below transferring the proceedings to the Assistant Excise and Taxation Commissioner is valid. Before the respective contentions of the parties is considered, it would be relevant to refer to and consider import of relevant provisions of the 1914 Act and the amendments carried out therein from time to time. Section 61 of the 1914 Act as existing prior to the amendment made vide Punjab Act No.10 of 2003, after the amendment by Punjab Act No.10 of 2003, till the amendment vide Punjab Act No.10 of 2004 with effect from 6.4.2004 and newly inserted Section 61-A in the 1914 Act by Punjab Act No.10 of 2003 with effect from 2.5.2003 and the further substituted vide Punjab Act No.10 of 2004 with effect from 6.4.2004 are extracted below for reference:- Criminal Misc. No. 59327-M of 2006 -5- Section 61 of the 1914 Act as was existing prior to amendment by Punjab Act No.10 of 2003 “61. Penalty for unlawful import, export, transport, manufacture, possession etc. - (i) Whoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made or of any license, permit or pass granted under this Act:- (a) imports, exports, transports, manufactures, collects, or possesses any intoxicant; or (b) constructs or works any distillery or brewery; or (c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari; shall be punishable for every such offence with imprisonment for a term which may extends to three years and with fine upto twenty-five thousand rupees. Provided that in the case of an offence relating to the possession of : (i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five thousand rupees; (ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees; (iii) country liquor manufacture otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles each bottle containing 750 Millilitres, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees, and in a quantity exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one thousand Criminal Misc. No. 59327-M of 2006 -6- rupees; (iv) foreign liquor other than- (a) manufactured in a licensed distillery or brewery in India; or (b) imported into India on which custom duty is leviable under the Indian Tariff Act, 1934, or the Customs Act, 1962. (c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees. (v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees. (2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. - Whoever in contravention of any section other than Sections 29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act- (a) sells any intoxicants ; or (b) cultivates the hemp plant; or (c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or (d) bottles any liquor for the purposes of sale; or (e) taps or draws tari form any tari producing tree, shall be punishable with imprisonment for a term which may extend to [two years and fine which may extend two thousand rupees]. Section 61 of the 1914 Act as was existing after amendment by Punjab Act No.10 of 2003 61. Penalty for offences triable by a court.- (1) Whoever Criminal Misc. No. 59327-M of 2006 -7- in contravention of any section of this Act, or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act:- (a) manufactures or collects any intoxicant; or (aa) imports, exports, transports or possesses any intoxicant other than liquor; or (b) constructs or works any distillery or brewery; or (c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari. shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine upto to twenty five thousand rupees Provided that in the case of an offence relating to the possession of :- (i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five thousand rupees; (ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees; (iii) country liquor manufactured otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles, each bottle containing 750 milliliters, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees; and in a quantity exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees; (iv) foreign liquor other than- (a) manufactured in a licensed distillery or brewery in India; or (b) imported into Indian on which custom duty is leviable Criminal Misc. No. 59327-M of 2006 -8- under the Indian Tarrif Act 1934 or the Customs Act, 1962. (c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees. (v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.] (2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. - Whoever in contravention of any section other than Sections 29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act- (a) sells any intoxicants ; or (b) cultivates the hemp plant; or (c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or (d) bottles any liquor for the purposes of sale; or (e) taps or draws tari form any tari producing tree, shall be punishable with imprisonment for a term which may extend to [two years and fine which may extend two thousand rupees]. Section 61-A of the 1914 Act as inserted vide Punjab Amendment Act No.10 of 2003 “61-A. Penalty for offences not triable by a Court:- (1) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor, shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of Criminal Misc. No. 59327-M of 2006 -9- their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the district and to the Deputy Excise and Taxation Commissioner, in-charge of the Division, within a period of twenty-four hours of such detention. The Excise Officer shall forward such liquor and the means of transport alongwith the necessary documents to the Deputy Excise and Taxation Commissioner in-charge of the Division. (2) On the receipt of the report referred to in sub-Section (1), the Deputy Excise and Taxation Commissioner in- charge of the Division, shall record the statements of the offender and the officers, concerned with the case, and release the offender. (3) The Deputy Excise and Taxation Commissioner in- charge of the Division, may levy a penalty of rupees ten thousand after giving the offender a reasonable opportunity of being heard, in case the liquor detained is licit, on which excise duty and other levies have been paid in the State of Punjab. (4) The Deputy Excise and Taxation Commissioner in- charge of the Division, may in addition to the confiscation of the liquor, levy a penalty of rupees fifty thousand on the offender and the owner of the means of transport after giving them an opportunity of being heard, in case the liquor detained is illicit and excise duty and other levies have not been paid thereon in the State of Punjab: Provided that for every repeated offence, a penalty of rupees one lac shall be imposed by the Deputy Excise and Taxation Commissioner in-charge of the Division. (5) If the penalty referred to in sub-section (4), is not paid within a period of one week from the date of the order, then the Deputy Excise and Taxation Commissioner in- charge of the Division shall pass a speaking order for Criminal Misc. No. 59327-M of 2006 -10- confiscation of the means of transport and the liquor after giving an opportunity of being heard to the offender and the owner of the means of transport. In case the owner of the liquor and the means of transport are not available, then the order for confiscation may be passed by the Deputy Excise and Taxation Commissioner in- charge of the Division by affording an opportunity of being heard to the offender, who has been caught with the goods. The confiscated liquor shall thereafter, be destroyed under the supervision of the DeputyExcise and Taxation Commissioner in-charge of the Division and an authenticated copy of the said order shall be supplied to the affected person free of cost. (6) The Deputy Excise and Taxation Commissioner in- charge of the Division, shall put to auction the confiscated means of transport within a period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The unrecovered amount of penalty, if any, shall be recoverable as arrears of land revenue.” Section 61 and 61-A of the 1914 Act as existing after amendment by Punjab Act No.10 of 2004 “61. Penalty for offences triable by a court (1) Whoever in the contravention of any section of this Act, or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act:- (a) manufactures or collects any intoxicant; or (aa) imports, exports, transports or possesses any intoxicant other than liquor; or (b) constructs or works any distillery or brewery; or (c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the Criminal Misc. No. 59327-M of 2006 -11- purpose of manufacturing any intoxicant other than tari. shall be punishable for every such offence with imprisonment for a term which may extends to three years and with fine upto twenty five thousand rupees Provided that in the case of an offence relating to the possession of:- (i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five thousand rupees; (ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees; (iii) country liquor manufactured otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles, each bottle containing 750 milliliters, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees; and in a quantity exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees; (iv) foreign liquor other than- (a) manufactured in a licensed distillery or brewery in India; or (b) imported into Indian on which custom duty is leviable under the Indian Tariff Act 1934 or the Customs Act, 1962. (c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees. [(v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.] Criminal Misc. No. 59327-M of 2006 -12- (2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc.- Whoever in contravention of any section other than Section 29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act- (a) sells any intoxicants; or (b) cultivates the hemp plant; or (c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or (d) bottles any liquor for the purposes of sale; or (e) taps or draws tari from any tari producing tree, shall be punishable with imprisonment for a term which may extend to [two years and fine which may extend two thousand rupees]. 61-A.Penalty for offences not triable by a Court:- (1) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor, shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the district within a period of twenty-four hours of such detention. The Excise Officer shall forward such liquor and the means of transport alongwith the necessary documents to the Assistant Excise and Taxation Commissioner in-charge of the district. (2) On the receipt of the report referred to in sub-section (1), the Assistant Excise and Taxation Commissioner in- charge of the district, shall record the statements of the offender and the officers, concerned with the case, and Criminal Misc. No. 59327-M of 2006 -13- release the offender. (3) The Assistant Excise and Taxation Commissioner in- charge of the district, may impose the following penalties after providing the offender a reasonable opportunity of being heard in case a liquor detained in licit, on which the excise duty and other levies have been paid in the State of Punjab, namely:- (a) rupees five thousand in case of detection of such liquor upto two cases i.e. 18 bulk litres; and (b) rupees ten thousand in case of detection of such liquor exceeding more than two cases i.e. 18 bulk litres. (4) The Assistant Excise and Taxation Commissioner in- charge of the district, may confiscate the illicit liquor and may also impose the following penalties after providing the offender a reasonable opportunity of being heard in case the liquor detained is illicit, on which the excise duty and other levies have not been paid in the State of Punjab, namely:- (a) rupees twenty five thousand in case of detection of such liquor up to five cases i.e. 45 bulk litres; (b) rupees fifty thousand in case of detection of such liquor exceeding five cases i.e. 45 bulk litres, but not exceeding fifty cases i.e. 450 bulk litres; and (c) rupees on lac in case of detection of such liquor exceeding fifty cases i.e. 450 bulk litres. (5) If the penalty referred to in sub-section (4), is not paid within a period of one week from the date of the order, then. The Assistant Excise and Taxation Commissioner in-charge of the district shall pass a speaking order for confiscation of the means of transport and the liquor after giving an opportunity of being heard to the offender and the owner of the means of transport. In case the owner of the liquor and the means of transport are not available, then the order for confiscation may be passed by the Assistant Excise and Taxation Criminal Misc. No. 59327-M of 2006 -14- Commissioner in-charge of the district by affording an opportunity of being heard to the offender, who has been caught with the goods. The confiscated liquor shall thereafter, be destroyed under the supervisison of the Assistant Excise and Taxation Commissioner in- charge of the district and an authenticated copy of the said order shall be supplied to the affected person free of cost. (6) The Assistant Excise and Taxation Commissioner in- charge of the district, shall put to auction the confiscated means of transport within a period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The unrecovered amount of penalty, if any, shall be recoverable as arrears of land revenue.” Section 61 of the 1914 Act, as was existing prior to the amendment vide Punjab Act No.10 of 2003, provided for prosecution in all the cases of illegal import, export, transport, manufacture, collection or possession of any intoxicants. An intoxicant, in term of definition thereof as contained in Section 3(12a) of the 1914 Act includes liquor. The punishment provided is of imprisonment for different terms and fine. After amendment carried out vide Punjab Act No.10 of 2003 whereby Section 61 of the 1914 Act was amended and a new Section 61-A was added, the scheme of the 1914 Act had undergone a change. After the amendment, a distinction was made with