M.N. Shukla, J.
1. This appeal by the State of Uttar Pradesh raises a point of law namely, whether there was a proper complaint filed by the prosecution on the basis of which the Magistrate could take cognizance of the case against the accused who was prosecuted under Section 64 (a) and (c) of the U. P. Excise Act (hereinafter referred to as the Act). The appellate court was of of the view that there was no such complaint and in the absence thereof the prosecution of the accused was illegal and contrary to the provisions of Section 70 of the U. P. Excise Act. He was. therefore, acquitted by the learned III Temporary Sessions Judge. Fatehpur and the State has challenged the order of acquittal in the present appeal.
2. According to the prosecution Sri. R. S. Gupta. Excise Inspector demanded the resister relating to the denatured spirit from the accused, who owned a shop at Khaga and was the licencee. on 30-9-1965 at 6 p.m. in the presence of the witnesses Ram Singh. Maharaj Din and Dilawar Husain. The account register and the licence were not kept at the shop. Even after waiting for a long time the accused did not produce the licence and the account register before the Excise Inspector who therefore could not verify the stock of receipt and sale of the denatured spirit. The accused thus committed an offence under Section 64 (a) and (c) of the U. P. Excise Act and the Excise Inspector submitted a charge sheet against him.
3. The accused pleaded not guilty and stated that he had been falsely implicated on account of enmity with Sri R. S. Gupta, Excise Inspector.
4. The prosecution evidence was. however, believed by the trial Magistrate and accused was convicted under Section 64 (a) and (c) of the U. P. Excise Act and sentenced to pay a fine of Rs. 150 and in default to undergo rigorous imprisonment for three months.
5. In the appellate court the accused for the first time raised the plea that the alleged complaint on which his prosecution was founded was not competent and his conviction was. therefore, illegal. The plea found favour with the appellate court and the respondent was acquitted.
6. In this Court, however the appellant filed an affidavit sworn by one Janardan Sanjar posted as Judicial Asstt Collectorate at Fatehpur. In the affidavit it was averred that. 'Sri Ram Das Sharma had been District Excise Officer in Fatehpur district since 8-3-1965 having been duly authorised by the then Collector and District Magistrate. Fatehpur Sri Anirudh Pandey vide his order dated 8-3-1965 in the order book for distribution of work duly maintained in the office of the Collector. Fatehpur.' This affidavit has not been controverted by the accused on whose behalf it was contended that it would not render any assistance to the prosecution case. Along with the affidavit the prosecution also filed as Annexure I an order of Sri Anirudh Pandey. Collector and District Magistrate, Fatehpur dated 8-3-1965 which contained the following distribution of work amongst the officers of the district:
Sri R. D. Sharma;
1. S. D. O./S. D. M. Bindki
2. Djstrict Excise Officer
3. Land Acquisition Officer
4. Road Side Land Control Officer
5. Arbitrator (Consolidation)
6. Administrator, Nehru Inter College, Bindki.
7. To deal with cases under Essential Commodities Act for the whole district.
8. To deal with cases under the U. P. Weights and Measures Act for the whole district.
9. Any other work entrusted by the D. M.
On the basis of the above document it was argued that Sri R. D. Sharma was the District Excise Officer and his powers were co-extensive with those of the Collector who was competent to file the complaint under Section 70 (b) of the U. P. Excise Act. It was also pointed put that Sri R. S. Gupta (P.W. 1) Excise Inspector had deposed that he had presented the charge sheet to the District Excise Officer on which the latter had made the following endorsement : --
The District Excise Magistrate for N.S. (necessary action).
The Excise Inspector formally proved the aforesaid document. The submission of the State Counsel is that this document may be treated as the proper complaint on which the prosecution of the respondent has commenced.
7. The allegation made by the prosecution, if established, would prove the commission of an offence under clauses (a) and (c) of Section 64 of the U. P. Excise Act which runs as under:
64. Penalty for certain acts by licensee or his servant.-Whoever, being the holder of a licence, permit. or pass granted under this Act. or being in the employ of such holder and acting on his behalf,-
(a) fails to produce such licence, permit or pass on the demand of any excise officer or of any other officer duly empowered to make such demand; or
(b) in any case not provided for in Section 60 wilfully contravenes any rule made under Section 40; or
(c) wilfully does or omits to do anything in breach of any of the conditions of the licence, permit or pass not otherwise provided for in this Act:
shall be punished for each such offence with fine which may extend to two hundred rupees.
8. Section 70 of the Act provided for the cognizance of offences and may be quoted:
70. Cognizance of offences.-- (1) No Magistrate shall take cognizance of an offence punishable-
(a) under Section 60, Section 63 or Section 65. except on his own knowledge or suspicion or on the complaint or report of an excise officer : or
(b) under Section 62. Section 64. Section 66. Section 67 or Section 68; except on the complaint or report of the Collector or an excise officer authorized by him in that behalf.
(2) Except with the special sanction of the State Government, no Magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed.
The instant case would be governed by Clause (b) of Sub-section (1) of Section 70. At this stage it would be pertinent to note the difference in the language of the two clauses (a) and (b) of this section. Whereas the words 'Excise. Officer' occurring in Section 70 (1) (a) are not qualified by any other words Clause (b) speaks of 'Excise Officer' authorised by the Collector in that behalf This marked difference in the language of the two clauses in the same sub-section shows that the legislature intended that the Excise Officer competent to make a complaint or report in respect of the offences enumerated in Clause (b) of Sub-section (1) of Section 70 of the Act must have been authorised by the Collector in that behalf. The contention of the appellant is that Sri R. D. Sharma being the District Excise Officer appointed by the Collector must be deemed to have been authorised by him to exercise all the powers and discharge all the functions of the Collector 'including the filing of complaint to enable the Magistrate to take cognizance of an offence punishable under the various sections of the Act. This argument, however, cannot be sustained on the basis of the material which has been brought on record in the instant case.
9. Section 10 of the Act deals with the administration of the Excise Department in the districts. It provides:
10. Administration of Excise Department in districts,- (1) The administration of Excise Department in any district shall, unless the State Government otherwise directs, be under the charge of the Collector of that district.
(2) Power of State Government.- The State Government may by notification applicable to the whole of Uttar Pradesh or to any district or local area comprised therein-
(a) to appoint Excise Commissioner.- appoint an officer hereinafter referred to as the Excise Commissioner, who shall, subject to the orders of the State Government have the control of the administration of the Excise Department.
(b) to appoint persons to exercise powers of Collector (constitute a Licensing Board or) appoint any person other than the Collector to exercise all or any of- the powers and to perform all or any of the duties of a Collector in respect of the administration of the Excise Department either concurrently with or in subordination to or in exclusion of the Collector subject to such control as the State Government may direct;
(h) to permit delegation of powers.- permit the delegation by the Excise Commissioner or Collector to any person or classes of persons specified in such notification of any cowers conferred by or under this Act or by or under any other law for the time being in force relating to excise revenue.
It is open to the Collector under the above section to appoint any person to exercise any of his powers and likewise to perform all or any of his duties. It is also open to him to delegate to any other person any powers conferred on the, Collector under the Act or any other law. for the time being in force relating to excise revenue. This section evidently does not specify the designation of the person so appointed or to whom delegation of such powers may be made. It. however makes clear that the appointee or the delegate would be . invested . with only those powers or duties which have been delegated to him or the performance of which has been expressly authorised by the collector. Any such appointment or delegation made does not invariably confer on such person the powers or the duties vested in the Collector nor does such authority become a substitute for the Collector for all purposes. Section 40 of the Act provides for the rule making power of the State Government. Apart from the general power contained in Sub-section (1). Sub-section (2) (a) extends it to 'regulating the delegation of any powers by the Excise Commissioner or Collector' made under Section 10 (2) (b). It appears that pursuant to that power the State Government framed rule 63 which runs as follows:
63... The Collector may appoint an Assistant Collector of not less than three years' standing, to be the Excise Officer in subordinate charge of the branches of excise administration entrusted to him; provided that with the Excise Commissioners' sanction he may so appoint an Assistant Collector of even less than three years' standing. The officer so appointed shall be called the District Excise officer.
10. The learned Deputy Government Advocate has not been able to place before us any provision in the Act envisaging the appointment of an authority with the designation of the District Excise Officer who. therefore, seems to be a creature -of the Rules reliance was however placed on Rule 63 for the purposes of showing that Sri. R. D. Sharma on whose complaint the prosecution of the respondent was launched was the District Excise Officer. The order of the/Collector to which we have already adverted appointing Sri R. D. Sharma as the District Excise Officer was further supported by an averment in the affidavit filed on behalf of the appellant to the effect that Sri. R. D. Sharma had already put in more than three years service as Assistant Collector and as such was . validly appointed as District Excise Officer by the Collector. Assuming however, that Sri. R. D. Sharma was validly appointed as District Excise Officer still complaint presented by him does not satisfy the requirements of Section 70 of the U.P. Excise Act. The appellants' counsel has not been able to lay his hand on any provision of law which may have the effect of equating the District Excise Officer with the Collector. Under Section 70 (1) (b) of the Act the complaint or report must be filed either by the Collector or an Excise Officer authorised by him in that behalf. We have already referred to the fact that the Act does not contemplate any officer with the nomenclature of the District Excise Officer. According to Section 3(2) of the Act which defines 'Excise Officer' the term means Collector or any officer or person appointed or invested with powers under Section 10. This definition shows that mere appointment of Assistant Collector in terms of rule 63 is not sufficient, it does not convert him into a Collector. Over and above that it must be proved whether all or which special powers have been conferred on such Excise Officer by the Collector. For a compliance of the procedure prescribed by Section 70(1)(b) of the Act the Excise Officer must be clothed with the authority of filing a complaint or report. That appears to be plainly the intention of the legislature from the mode of appointment of the various officers in the district as reflected in Section 10 of the Act.
11. The same conclusion is reinforced by a reference to the provisions of Rule 58(a) of the Excise Rules which provides that the Collectors may delegate their powers under the Act in the Assistant and Deputy Collector in charge of a sub-division or appointed as District Excise Officers, all or any of their powers under the Act. The language, is unambiguous in showing that mere appointment of a District Excise Officer does not lead to the conclusion that all the powers of the Collectors have been delegated to him. Whenever authority of a District Excise Officer to file a complaint as contemplated by section 71(b) is challenged it must be affirmatively proved that this particular power was delegated to him. The appellant has not been able to place any material on record to indicate that the District Excise Officer Sri. R. D. Sharma was clothed with this particular power or that he was invested with all the comprehensive powers of the Collector. The learned Deputy Government Advocate has also not been able to refer to any provision of the Excise Act or the Rules which may warrant the proposition that a District Excise Officer is to be equated with the Collector for the purposes of the Act. Learned Counsel for the State has not been able to point out to us anything on the record or any government gazette etc. which may go to show that the Collector, Fatehpur had delegated his authority authorising the District Excise Officer to make a report of complaint. No provision in the U. P. Excise Act has also been shown or pointed out which may so to show that District Excise Officer, Fatehpur had been authorised to lodge a complaint or a report for the prosecution of the accused.
12. In view of these facts the conclusion becomes irresistible that the District Excise Officer in the instant case was not competent to lodge a report or complaint and the learned Magistrate acted without jurisdiction in taking cognizance of the prosecution launched against the respondent.
13. For these reasons we are of the opinion that there is no force in this appeal and it is accordingly dismissed.