R.S. Bindra, J.C.
1. This reference under Section 432(1) of the Criminal P. C. made by Shri Th. Gunamani Singh, Sub-divisional Magistrate, Imphal West, respecting two excise cases pending in his Court under Section 53(a) of the Eastern Bengal and Assam Excise Act, 1910, hereinafter called the Act, raises the question whether Sub-Inspector of Police has the legal authority to launch prosecutions under that provision of the Act. The Sub-Divisional Magistrate has expressed the opinion in the negative.
2. The prosecution in each case was launched by a Sub-Inspector of Police and the authority for the initiation of proceedings by a Police Officer, it is contended on behalf of the State, is derived from the order dated 4th of May 1959 made by the Chief Commissioner, Manipur. That order shall hereinafter be mentioned as the Order. The subject of initiation of prosecutions is dealt with in Section 65 of the Act. It is provided therein, inter alia, that no Magistrate shall take cognizance of an offence punishable under Section 53 of the Act except on his own knowledge or suspicion, or on the complaint or report of an Excise officer. Therefore, the precise point that falls for determination in this reference is whether a Sub-Inspector of Police is an Excise officer within the meaning of the Act. The expression Excise officer is defined in Clause (9) of Section 3 of the Act to mean a Collector or any officer or other person appointed or invested with powers under Section 8. Shri Ibotombi Singh, the Government Advocate, was unable to cite any order or notification of the Government appointing Sub-Inspectors of Police in the Territory of Manipur as Excise officer. Therefore, prima facie the Sub-Inspector of Police had no authority to launch prosecution against either of the two accused under Section 53 of the Act.
3. The Government Advocate urged however, that the order dated 4th of May 1959 can be read to mean and imply that Police officers not below the rank of Sub-Inspector are Excise officers for the purposes of the Act. The opening words of the Order are as under:
In exercise of the powers conferred by portions hereinafter mentioned of the Eastern Bengal and Assam Excise Act, 1910 (Eastern Bengal and Assam Act I of 1910) as extended to this Territory, the Chief Commissioner, Manipur, is pleased to make the following orders.
In the relevant operative part of the Order it is mentioned inter alia that the Police officers not below the rank of Sub-Inspector 'may exercise all the powers and perform all the duties conferred and enjoined' by Section 65 (1) (a) and (b) of the Act. I have stated above that a Magistrate can take cognizance of an offence punishable under Section 53 of the Act only on the complaint or report of an Excise officer. Therefore, unless the Police Sub-Inspector is appointed as an Excise officer under Section 8 of the Act, the Chief Commissioner could not have legally given power to him (Sub-Inspector) to initiate prosecutions under Section 53 of the Act. The Order nowhere mentions that the Police Sub-Inspectors are appointed as Excise officers under the Act. It will be noticed that the appointment of various officers contemplated by the Act can be made only under Section 8 of the Act, and' since without taking recourse to that provision of the Act the Chief Commissioner purported to empower the Police officers not below the rank of Sub-Inspector to initiate proceedings under- Section 65 (1) (a) (b) of the Act, that investiture cannot be described as valid in law. I may emphasise that in the opening words of the Order (reproduced above) it is specifically mentioned that powers were conferred on the various Police Officers in exercise of the authority 'conferred by portions hereinafter mentioned of the Eastern Bengal and Assam Excise Act', and the 'portions' of the Act mentioned in the body of the Order do not include Section 8 of the Act. And since no Police Officer could be appointed as Excise Officer without exercise of authority given by Section 8 of the Act, it is apparent that Sub-Inspectors of Police have not so far been appointed as Excise Officers.
4. I deem it appropriate to make a brief reference to another argument raised by Shri A. Nilamani Singh, the Advocate representing the accused. That argument Is based on the provisions of Clauses (c) and (d) of Sub-section (2) of Section 8 of the Act. The relevant part of the provisions may be excerpted as under:
(2) The Provincial Government may, by notification, applicable to the whole of the territories to which this Act applies or to any district or local area comprised therein-
(c) appoint officers of the Excise Department of such classes and with such designations, powers and duties under this Act, as the Provincial Government may think fit;
(d) order that all or any of the powers and duties assigned to any officer under Clause (c) of this section shall be exercised and performed by any servant of the Crown or any other person;
It was contended by Shri Nilamani Singh that the Provincial Government must appoint Excise officers and give them designations and specify their powers and duties under Clause (C), before proceeding to make an order under Clause (d) that all or any of the powers and duties assigned to any officer of Excise Department under Clause (c) shall be exercised and performed by any servant of the Provincial Government or any other person, In other words, what Shri Nilamani Singh contended was that Government- employees of Departments other ' than Excise can be given powers only after such powers have been conferred upon the personnel of the Excise Department. This contention appears to be quite weighty because Clause (d) specifically enjoins that the Provincial Government can vest powers in its servants belonging to non-Excise Departments only in reference to the powers given and duties assigned to any officer of the Excise Department under Clause (c). Obviously, if the officers are not appointed to the Excise Department or powers are not vested in . them, then no action can be taken under Clause (d). It would, therefore, appear that the Chief Commissioner had issued the order dated 4th of May 1959 without first taking the necessary preliminary steps envisaged by Clause (c). It is a settled rule of interpretation of Statutes that where power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Reference is invited in this connection to the decision in Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2). The Supreme Court has also held likewise in the case of State of Gujarat v. Shantilal Mangaldas : 3SCR341 . Since in the instant case the Chief Commissioner happened to vest Sub-Inspectors of Police with powers under the Act not in the manner provided by Section 8, that investiture is not valid in law.
5. Before concluding I may observe that by an order dated 29th of January 1960, published in the Manipur Gazette dated 10th February 1960, the Chief Commissioner has conferred powers under the various sections in the Act on the Excise officers mentioned therein. Therefore, the Chief Commissioner can now very conveniently confer powers on the officers of the Police Department in exercise of his authority under Clause (d) of Section 8(2) of the Act. It is, therefore, suggested that the Chief Commissioner may now do so to facilitate the working of the Act. A copy of this judgment should be sent to the Government.
6. As a result of the conclusions recorded above, I accept the reference and quash the, prosecutions in both the cases. If the Government still wants to prosecute the two accused, it may do so afresh in accordance with the provisions of law.