Criminal Revision No. 1396 of 2001 -1- .... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1396 of 2001 Date of decision:- 20.12.2010 Jagdev Singh and another ......Petitioners versus The State of Punjab ......Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: - Ms. Sumanjit Kaur, Advocate as Amicus Curiae, for the petitioners. Mr. O.P. Dabla, D.A.G., Punjab, for the respondent – State. A.N. JINDAL, J (ORAL) This petition has arisen out of the judgment dated 17.07.2001 passed by Additional Sessions Judge, Rupnagar dismissing the appeal filed against the judgment dated 24.10.2000 passed by Judicial Magistrate 1st Class, Rupnagar, convicting and sentencing the accused to undergo rigorous imprisonment for two years and to pay a fine of ` 2500/- each under Section 61(1)(a) of the Punjab Excise Act, 1914 (for brevity “the Act”). In nutshell, the prosecution story is that on 20.10.1996, Sub Inspector Mangal Singh, HC Kewal Singh, HC Amrik Singh etc. were present in Nuhon Colony, Ropar along with other Police officials where he received secret information that both the accused- petitioners (hereinafter referred to as the 'petitioners') were indulging in keeping country made liquor without any licence, behind the Punjab and Sind Bank, near bus stand Ghanauli. Believing the Criminal Revision No. 1396 of 2001 -2- .... information to be reliable, he sent ruqa to the Police Station on the basis of which the FIR was recorded. On conducting of the raid, following different types of liquor was recovered from the premises : - “i) 61 bottles of liquor marked “Dilbahar”; ii) Two bottles as well as 99 half bottles and 62 quarters of Rum marked “Landlord”; iii) 14 half bottles and 50 quarters of Rum marked “Sherdil”; iv) 22 half bottles and 49 quarters of whisky marked “Sherdil”; v) 10 bottles of liquor marked “Rusphery”; vi) 96 bottles, 201 half bottles and 562 quarters of liquor marked “Santra”; vii) 36 bottles and 25 half bottles of liquor marked “Malwa No.1”; viii) 8 bottles and 36 half bottles and 77 quarters marked “Golden Tiger”; ix) 12 bottles of liquor marked “Dilruba”; x) 9 bottles, 45 half bottles and 50 quarters of liquor marked “Bagpiper”; and xi) 2 bottles of beer “Thunder Bolt.” Since the petitioners failed to show any permit or licence, therefore, case was investigated and they were challaned. Consequently, they were charged under Section 61(1)(a) of 'the Act' to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Sachdev Sharma, Photographer (PW-1), Head Constable Nikka Ram (PW-2), Constable Balbir Singh (PW-3), Sub Inspector Joga Singh (PW-4), Head Constable Kewal Singh (PW-5) and Sub Inspector Mangal Singh (PW-6). Criminal Revision No. 1396 of 2001 -3- .... When examined under Section 313 of the Code of Criminal Procedure, both the accused denied all the allegations and further explained that they were working as employees of Yash Pal, Liquor Contractor, Ghanauli. The Police visited them and asked for ten boxes of “Red Knight” Whisky as the same was required by the D.S.P. However, they (Police personal) were asked to bring some chit from their contractor upon which they were falsely implicated. The accused further stated that Yash Pal, Contractor was having licence L-13 and L-14. In defence, they also examined Jaswinder Singh from Excise Department as DW-1. The trial resulted into conviction. Their appeal also failed. There is no denying a fact that SI Mangal Singh raided the liquor vend situated at the back of Punjab and Sind Bank, Ghanauli during night hours. SI Mangal Singh admits that it was the liquor vend which was raided and different types of liquor were recovered from the premises. It is also admitted by SI Mangal Singh (PW-6) that the accused were the employees of Yash Pal Contractor and it was a licenced vend. He also admits that as per report of the chemical examiner, liquor so recovered was found to be illicit. Jaswinder Singh (DW-1), Clerk from the office of Assistant Excise and Taxation Commissioner, Ropar, has deposed from the record that Yash Pal was the contractor of the liquor vend vide licence Ex. D-1 for the year 1996-97. He further admits that as per instructions, copy of which is Ex. D-3, only a gazetted Police officer of the rank of D.S.P. could check the excise vend in the presence of Excise Inspector. Criminal Revision No. 1396 of 2001 -4- .... Learned counsel for the petitioners has urged that neither SI Mangal Singh was the gazetted officer nor he joined any Excise Inspector in the raiding party, therefore, he had no right or jurisdiction to check the excise vend of a Contractor who was running the same under licence duly issued to him. Therefore, this case is an example of misuse of the powers by SI Mangal Singh. Arguments have merit, there is no denying a fact that this excise shop belonged to Yash Pal Contractor who was allowed licence for the year 1996-97 and that the accused were the employees of the Yash Pal Contractor. Jaswinder Singh (DW-1) admits that as per site plan Ex.D-2., the shop was behind the Punjab and Sind Bank, Nangal Road at Ropar. The secret information was also regarding the selling of the liquor at the said shop which was behind the Punjab and Sind Bank. In order to determine whether SI, Mangal Singh was vested with the powers to check the excise vend, I need to examine the instructions Ex.D-3 dated 06.03.1996 issued by the department, relevant extract of the same is reproduced as under: - “ xxx xxx xxx It has been decided that no official or any other department of the Government will take action of any kind to check the quality of liquor that is produced or sold in the State, except alongwith the concerned Excise Officer of the area. Similarly only a Gazetted Police Officer of the rank of D.S.P. has been authorized to check the excise vends Criminal Revision No. 1396 of 2001 -5- .... that too in the company of the Excise Officer not below the rank of Excise Inspector. He will not book-petty offences of technical nature. It has been decided that the existing system of the Excise Police to be drawn from the Districts will continue and this Police force will be at the disposal of the Excise & Taxation Commissioner, who has got the option to utilize their services at his discretion.” The policy of the State Government to exclude the powers of the Police Officials with regard to the search and seizure appears to have been framed in order to remove the apprehension of the Excise Contractors in the interest of the revenue. As such while excluding the powers of the police officials, it was directed that no search or seizure could be made by any police officer except a gazetted Police Officer that too by associating the Excise Officers/Excise Inspectors. Section 45 of the Act defines the powers of the Excise Officers to enter and inspect places of manufacture and sale of the excisable articles which reads as under: - 45. Power to enter and inspect places of manufacture and sale.- Any excise officer not below such rank as the State Government may prescribe to: (a) enter and inspect at any time by day or by night, any place in which any licensed manufacturer carriers any intoxicant by the Govt. of India (Adaptation of Indian Laws) Order, 1937; (b) enter and inspect at any time within the hours Criminal Revision No. 1396 of 2001 -6- .... during which sale is permitted, and at any other time during which the same may be open, any place in which any, intoxicant by the Govt. of India (Adaptation of Indian Laws) Order, 1937 is kept for sale by any person holding a license under this Act; (c) examine accounts and registers, test, measure or weigh any materials, stills, utensils, implements, apparatus or intoxicant by the Govt. of India (Adaptation of Indian Laws) Order, 1937 found in that place; (d) seize any account, registers, measures, weights, or testing instruments which he has reason to believe to be false. Arrest, seizure and detention are envisaged under Section 47 of the Act which reads as under: - “47. Power of arrest, seizure and detention.- Any officer of the excise, police, salt, or land revenue department, not below such rank and subject to such restrictions as the State Government may prescribe, any other person duly empowered by notification by the State Government in this behalf, may arrest without warrant any person found committing an offence punishable, under Section 61, or Section 63, and may seize and detain any intoxicant or other article which he has reason to believe to be liable to confiscation under this Act or to her law for the time being in force relating to excise Criminal Revision No. 1396 of 2001 -7- .... revenue; and may 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.” The difference between Sections 45 and 47 of the Act as applicable to Haryana is that the licensed premises could be inspected only by an Excise Officer as prescribed by the State Government by way of specific notification and Section 47 refers to Excise Officer as well as Police Officer or other officers of the land Revenue Department empowered with the powers of a Police Officer to seize and search the articles. The instant case does not relate to the premises which were not licensed one and the offence punishable under Section 61 or Section 63 of 'the Act' was being or likely to be committed. Section 51 obliges the Police Officials to aid the excise officers in the due execution of the Act upon request made by such excise officers. Law envisaged that the gazetted Police Officers were vested with the powers to associate the Excise Officer. It appears that the policy behind vesting gazetted Police Officers with the powers of search was to avoid possession and sale of spurious or other contraband under the grab of licensed liquor. The other violation committed by the Investigating Officer in this case is that he did not enter and inspect the places during the sale hours, therefore, the search was in violation of provisions of Section 45 (b) of the Act. The other violation committed by the Investigating Officer in this case is of Section 50 (2) of the Act which Criminal Revision No. 1396 of 2001 -8- .... reads as under: - “50 (2) whenever an excise officer below the rank of Collector makes any arrest, seizure or search he shall within twenty-four hours thereafter make a full report of all the particulars of the arrest, seizure or search to his immediate official superior, and shall, unless bail be accented under Section 73, take or send the person arrested or the article seized, with all convenient despatch to a Judicial Magistrate for trial or adjudication.” In the instant case, the Investigating Officer did not comply with the provisions of Section 50 (2) of the Act as applicable to Haryana. On conspectus of the entire evidence, it is observed that Sub Inspector Mangal Singh was not competent to raid the liquor vend of a licensed dealer without the request or aid of the Excise Inspector that too, during the odd hours, as he was not authorized to inspect the licensed premises. He also did not make a report of such search and seizure to the Judicial Magistrate within twenty four hours and also full report of all the particulars of the arrest, seizure or search was not made to his immediate official superior, as such aforesaid contravention of the provisions vitiates the recovery. Resultantly, this revision petition is accepted. The impugned judgment is set aside and the petitioners are acquitted of the charges framed against them. They are directed to be set at Criminal Revision No. 1396 of 2001 -9- .... liberty forthwith. The bail bonds and surety bonds furnished by them stand discharged. (A.N.JINDAL) JUDGE 20.12.2010 neetu