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State of Rajasthan Vs. Laxman Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1981CriLJ370; 1980()WLN433
AppellantState of Rajasthan
RespondentLaxman Singh and anr.
Cases ReferredIn State of Rajasthan v. Rana
Excerpt:
rajasthan excise act, 1950 - sections 3(7) and 67(1)(a)--rajasthan excise rules 1956--rules 88 & 89--expression 'excise officer' explained--excise inspectors invested with powers of excise officers--held, they are competent to file complaint for offences under section 67(1)(a).;in view of notification no. 3, quoted above and in view of rules 88 and 89, excise inspectors have been invested with the powers of excise officers and as such they are excise officers within the meaning of section 3(7) of the act, so they are competent to make a complaint or the report in respect of the offences enumerated in section 67(1)(a) on which magistrate can take cognizance.;appeals accepted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 &.....m.c. jain, j.1. these two appeals raise an important and interesting question as to whether an excise inspector is an excise officer within the meaning of the expression 'excise officer' as defined under clause (7) of section 3 of the rajas-than excise act, 1950 (hereinafter referred to as 'the act') and whether he can present a complaint or a report under clause (a) of sub-section (1) of section 67 of the act on which cognizance can be taken by a magistrate.2. the matter has come up before us in view of the conflicting decisions of this court in s. b. criminal revision no. 398 of 1975-laxman singh v. the state of rajasthan decided on 31-1-1979, s.n. deedwania, j., took the view that excise inspector is an excise officer and is competent to present a complaint or a report under section.....
Judgment:

M.C. Jain, J.

1. These two appeals raise an important and interesting question as to whether an Excise Inspector is an Excise Officer within the meaning of the expression 'Excise Officer' as defined under Clause (7) of Section 3 of the Rajas-than Excise Act, 1950 (hereinafter referred to as 'the Act') and whether he can present a complaint or a report under Clause (a) of Sub-section (1) of Section 67 of the Act on which cognizance can be taken by a Magistrate.

2. The matter has come up before us in view of the conflicting decisions of this Court in S. B. Criminal Revision No. 398 of 1975-Laxman Singh v. The State of Rajasthan decided on 31-1-1979, S.N. Deedwania, J., took the view that Excise Inspector is an Excise Officer and is competent to present a complaint or a report under Section 67(1)(a) of the Act and cognizance can be taken thereon, whereas Miss Kanta Bhatnagar, J., in S.B. Criminal Revn. No. 237 of 1976, Bhagwana v. State of Rajasthan (decided on 28-3-1979) took a contrary view and the earlier decision of Deedwania J., was not brought to the notice of the learned Judge deciding Bhagwana's case.

3. In Criminal Appeal No. 152 of 1980 the Judicial Magistrate, First Class No. 1, Hanumangarh, acquitted the accused-respondent Laxmansingh of the offence under Section 54(a)(c) and (d) of the Act on the ground that the complaint was presented by the Excise Inspector on which no cognizance could have been taken. Similarly in Criminal Appeal No. 199 of 1980 following the view taken in Bhagwana's case, the Additional Munsif and Judicial Magistrate, Sri Ganganagar, acquitted the accused-respondent Roop Ram of the offence under Section 54(a) of the Act. After grant of leave to appeal these appeals have been ordered to be put up before the larger Bench.

4. We have heard Shri D.S. Shishodia, learned Public Prosecutor, for the State and Shri S.N. Sharma, learned Counsel for the respondent Laxman Singh and Shri B. R. Arora, learned Counsel for the respondent Roop Ram in the other appeal and Shri M.P. Gupta, Advocate, as an Intervener.

5. For determining the controversial question, which has arisen in these appeals, it will be necessary to examine the various provisions of the Act and the scheme thereof. Section 67 of the Act runs as under:

67. Cognizance of offences.- (1) No Magistrate shall take cognizance of an offence punishable-

(a) Under Section 54 or Section 57 or Section 59 or Section 63 except on his own knowledge or suspicion or on a complaint or the report of an Excise Officer, or

(b) under Section 55 or Section 56 or Section 58 or Section 60 or Section 61 or Section 62 except on a complaint or the report of an officer not below the rank of the Excise Commissioner or an Excise Officer duly empowered in that behalf.

Explanation, - The report of an Excise Officer under this Sub-section shall be treated for all purposes of trial to be a report made by a police officer within the meaning of Clause (b) of sub-sec (1) of Section 190 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).

(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.

6. It would appear from the above provision that the Magistrate is debarred to take cognizance of the offences under Sections 54, 57, 59 and 63 except on his own knowledge or suspicion or on a complaint or the report of an Excise Officer under Clause (a) of Sub-section (1) and cognizance of the offences under Sections 55, 56, 58, 60, 61 and 62 is barred except on a complaint or the report of an officer not below the rank of the Excise Commissioner or an Excise Officer duly empowered in that behalf. In respect to the offences mentioned in Clause (b) the provision requires specific authority to be conferred on an Excise Officer, but it is not so in respect to the offences stated in Clause (a). If the complaint or the report for the offences enumerated in Clause (a) is presented by an Excise Officer, then the Magistrate is competent to take cognizance on such complaint or report. It may be stated here that in both these appeals we are concerned with the offence under Section 54 covered under Clause (a) of Section 67(1) and we are not concerned with offences enumerated in Clause (b). The explanation to Section 67 of the Act provides that the report of an Excise Officer under Sub-section (1) shall be treated to be a report made by a police officer within the meaning of Clause (b) of Sub-section (1) of Section 190 of the Code pf Criminal Procedure, 1973. In both these cases the reports were presented by the Excise Inspectors, Thus, what has to be seen is as to whether the Excise Inspectors are Excise Officers. If they are Excise Officers, the Magistrate is competent to take cognizance under Clause (a) of Sub-section (1) of Section 67,

7. The expression 'Excise Officer' is defined under Clause (7) of Section 3, as under:

3. Definitions. -In this Act unless there is something repugnant in the subject or context.

XX XX XX(7) 'Excise Officer' means any officer or person other than the Excise Commissioner appointed under Section 9 or invested with powers of an Excise Officer under this Act.

8. The above definition can be bifurcated into two parts. If any officer or person other than the Excise Commissioner, is appointed under Section 9 then he is an Excise Officer and even if not so appointed, is invested with powers of an Excise Officer under the Act, he will also be an Excise Officer. The conjunction 'or' occurring in the definition, makes it abundantly clear. Shri Shishodia submitted that both the State cases are not covered within the first category of officers, that is, he did not argue before us that the Excise Inspectors in both the cases, were appointed under Section 9. What he has contended before us is that both the cases are covered in the second category, He submitted that the Excise Inspectors have been invested with powers of an Excise Officer under the Act, so all Excise Inspectors are Excise Officers.

9. Section 9 of the Act deals with the appointment of Commissioner and Excise Officers and Section 10 with appointment of officers and conferring powers. It would be profitable to reproduce these two sections for facility of reference. They read as under:

9. Appointment of Commissioner and Excise Officers.- (1) The State Government shall appoint an Excise Commissioner and may appoint as many Additional Excise Commissioners as may be deemed necessary, for the whole of those parts of the State of Rajasthan to which this Act extends.

(1-A) The State Government may also appoint such and so many other persons, as it thinks fit and necessary to be:

(i) Deputy Excise Commissioners-in-charge of divisions.

(ii) District Excise Officer-in-charge of district, and

(iii) other inferior Excise Officers.

(1-B) The State Government may prescribe duties and powers to be performed and exercised by each officer or class of officers appointed under Sub-sections (1) and (1-A).

(2) The State Government may delegate to the Excise Commissioner such powers of the State Government conferred by this Act, as it may specify except the power to make rules thereunder.

(3) The State Government may also authorise the Excise Commissioner to delegate to any of his subordinate officers such of his powers under this Act, as may be specified.

10. Appointment of officers and conferring powers.- (1) The State Government may-

(a) empower any officer to perform the acts and duties mentioned in chapter VIII, and

(b) order that all or any of the powers and duties assigned to an officer of the Excise Department under this Act shall, subject to the provisions thereof, be exercised and performed by any officer other than officer of the Excise Department or by any other person.

10. Under Sub-section (1-A) of Section 9, categories of officers are enumerated. The State Government is empowered to appoint 'other inferior excise officers'. If the State Government appoints inferior Excise Officers under category (iii), then such officers may be considered to be excise officers within the meaning of the expression 'Excise Officer' as defined in Clause (7) of Section 3. Sub-section (1-B) empowers the State Government to prescribe duties and powers to be performed and exercised by each officer or class of officers appointed either under Sub-section (1) or under Sub-section (1-A). Sub-section (2) of this section confers power of delegation on the State Government. It may be stated here that it is not the case of the State Government that the Excise Commissioner has been delegated the powers by the State Govt. under Sub-section (1-A) for the appointment of inferior Excise Officers and it is not the case of the State that the Excise Inspectors in the State are appointed by the Excise Commissioner under any delegated power.

Section 10 is a provision for conferring powers by the State Government. Clause (a) of Sub-section (1) of Section 10 provides that the State Government may empower any officer to perform the acts and duties mentioned in Chapter VIII and Clause (b) provides that the State Government may order that all or any of the powers and duties assigned to an officer of the Excise Department under the Act shall, subject to the provisions thereof, be exercised and performed by any officer other than an officer of the Excise Department or by any other person. Officer under Clause (a) would obviously mean an officer of the Excise Department and officer of any other department or any other person may be ordered to perform the duties and exercise powers of an officer of the Excise Department under Clause (b). Thus, it would appear that if any officer or person is empowered to perform the acts and duties mentioned in Chap. VIII, it may amount to investing with powers of an Excise Officer under the Act, then such officer or person would be an Excise Officer within the meaning of Clause (7) of Section 3.

Chapter VIII deals with powers and duties of officers. This Chapter contains Sections 43 to 53. Section 43 confers powers of entering and inspecting places of manufacture and sale of any excisable article and also confers power of examining any book, account and other articles and materials stated in Clause (c) and also of seizing any measures, weights or testing instruments, on the Excise Commissioner or any Excise Officer not below such rank as the State Government may prescribe. Similarly Section 44 confers powers of investigation into offences punishable under the Act, or any Excise Officer of the Excise Department not below such rank as the State Government may prescribe. Section 47 further confers power on an officer of the Excise Department not below such rank as the State Government may prescribe, with respect to search without warrant.

Under these provisions by notification the State Government is empowerd to confer powers on any officer of the Excise Department. If powers are conferred on Excise Inspectors, then it can be said that they have been invested with the powers of an Excise Officer. Any one on whom powers of Excise Officer are invested or conferred, would be an Excise Officer within the meaning of this expression, as defined under Clause (7) of Section 3. Section 67 falls under Chap. IX and not under Chapter VIII. Chapter IX deals with offences and penalties. The State Government has issued notifications from time to time conferring powers under various provisions of the Act on officers of the Excise Department as well as on other officers. We have been referred to the following notifications:

No. 1. Notification No. F. 49 (1), SR/50, dated 15-5-1951, published in Rajasthan Gazette, Part I, dated 19-5-1951.- In exercise of the powers conferred by Sub-section (1-B) of Section 9 of the Rajasthan Excise Act, 1950 the Government of Rajasthan is pleased to invest the Excise Officers not below the rank of Inspectors with the powers under Sections 43, 44 and 47 of the said Act.

No. 2: Notification No. F. 49 (1) SR/50, dated 15-5-51, R.G.G. Part I, dated 19-5-1951.- In exercise of the powers conferred by Sub-section (3) of Section 9 of the Rajasthan Excise Act, 1950, the Government of Rajasthan is pleased to authorise the Excise Commissioner to delegate to the following subordinate officers all or any of his powers under mentioned against them, namely:

1. Deputy Excise Commissioner- Sections 15, 20, 46 and 67(1)(b) in so far as the complaint, or report is not for offences under Sections 60 and 61.

2. Assistant Excise Commissioners-. Section 15 Power to grant passes for import and transport Sections 46(a), 67(1)(b) in so far as it relates to provisions other than Sections 60 and 61 and 69(3).

3. Excise Inspectors-

Section 15 (Powers to grant passes for transport).

No. 3: No. F. 49 (1) S. R/50, dated 30-11-51 R.G.G. (1), dated 8-12-51 page 775.- In exercise of the powers conferred by Section 10 of the Rajasthan Excise Act, 1950, the Government of Rajasthan is pleased to order that all officers of the Customs and Excise Department, including Guards, shall exercise the powers and perform the duties under Section 45 of the Act.

No. 4: No. F. l (52) E and T/61, dated 9-9-61' R.G.G. (1) V.C. dated 26-10-61.- In exercise of the powers conferred by Section 10 of the Rajasthan Excise Act, 1950 (Act No. 11 of 1950), and in supersession of this Department Notification No. F. 49 (1) SR/50, dated 15th May, 1951 published in the Rajasthan Gazette Vol. Ill Pt. I of 1951' the State Government hereby orders that the officers of Police and Revenue Department not below the rank specified hereunder shall exercise the powers and perform the duties under the sections mentioned against them: --1. Naib Tahsildar, Section 47.Revenue and above.2. Sub-Inspector of Sections 44, 47 and 67Police- (1)(a) except in respectof the retail licencesgranted for sale of liquorunder the Act.3. All officers of Police Section 45 except inand Revenue includ- respect of the retailing Constables licences granted for saleChowkidars and of liquor under the Act.Patwaris.

11. By notification No. 1 reproduced above the State Government invested the Excise Officers tot below the rank of Inspectors with the powers under Sections 43, 44 and 47 of the Act, The powers have been invested in exercise of the powers conferred under Section 9(1-B). Notification No. 2 is with regard to delegation of powers by the State Government on the Excise Commissioner. By this notification the Excise Commissioner has been delegated the authority to confer powers under various provisions on the officers mentioned therein. It would appear that the Excise Commissioner can empower the Deputy Excise Commissioner and Assistant Excise Commissioner for presenting complaint or the report under Section 67(1)(b). The notification No. 3 is issued under Section 10 whereby officers of the Customs and Excise Department, including Guards, have been conferred powers and perform the duties under Section 45 of the Act relating to arrest, seizure and detention. The notification No. 4 is also issued under Section 10 conferring powers on the officers of Police and Revenue Department under various sections. The Sub-Inspector of Police has also been conferred powers under Section 67(1)(a).

12. The analysis of the various provisions reveals that any officer or person whether of the Excise Department or of any other Department, who is invested with powers of an Excise Officer under Chapter VIII, he will be considered to be an Excise Officer under Clause (7) of Section 3. It is not necessary that all the powers of an Excise Officer should be invested in that officer or person. Under Section 3(7), though the word used is 'powers' in plural, but it can also be construed as singular. If any officer or person is vested with a particular power under Chapter VIII, still it would be sufficient to treat him as an Excise Officer under Clause (7) of Section 3. Singular can be construed as plural and plural can be construed as singular under Section 14(2) of the Rajasthan General Clauses Act. Excise Inspectors have been conferred with powers under Sections 43, 44 and 47 by notification No. 1 under Section 9(1-B), but such powers can be conferred only on officer appointed under sub-sees; (1) and (1-A). As Excise Inspectors have not been appointed under Sub-sections (1) and (1-A), this notification cannot be pressed into service, but powers have been conferred under Section 45 by notification No. 3 quoted above.

13. Independent of the power to issue notifications, the State Government is empowered to frame rules under Section 41. Under Clause (b) of Sub-section (2) of Section 41 powers have been specifically conferred on the State Government to make rules prescribing the powers and duties of officers of the Excise Department. In exercise of these powers the State Government has framed rules, namely, The Rajasthan Excise Rules, 1956 (hereinafter referred to as 'the Rules'). Chapter XIII of the Rules deals with powers of officers. Rule 88 confers powers on all Excise Officers not below the rank of Excise Inspectors and patrolling officers in the Excise Preventive Force under Sections 43, 44, 45 and 47 and further under Rule 89, Excise Officers including Excise Guards, have been conferred with powers mentioned in Section 45 and proviso to Rule 89 lays down that when power is exercised by an Excise Officer other than an Excise Inspector of a Circle concerned, then such officer is required to hand over the persons arrested and the articles seized to the Excise Inspectors of the Circle concerned.

Thus, so far as Excise Inspectors are concerned, they have been invested with all the powers of entry, inspection, investigation, arrest, seizure and detention and search without warrant. By Section 48 of the Act the provisions of the Code of Criminal Procedure relating to arrest, searches, search warrants, production of persons arrested and investigation into offences have been made applicable, so far as may be, to all actions taken in these respects under the Act, subject to the provisions embodied under the proviso. As already stated, if Excise Inspectors are considered to have been invested with powers of Excise Officers, then they will be treated as Excise Officers and that being so, they are competent to present complaint or report in respect to the offences mentioned in Section 67(1)(a).

14. In Supdt. and Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity : 1979CriLJ897 their Lordships of the Supreme Court laid down the following rule of interpretation:

But a statute is not to be interpreted merely from the lexicographer's angle. The court must give effect to the will and inbuilt policy of the Legislature as discernible from the object and scheme of the enactment and the language employed herein.

Exposition ex visceribus actus is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are, therefore, not to be construed in isolation. For instance, the use of the word 'may' would normally indicate that the provision was not mandatory. But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the uninevitable position, as it were, 'of an ineffectual angel beating its wings in a luminous void in vain', 'If the choice is between two interpretations', said Viscount Simon L.C. Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 AC 1014 at p. 1022 'the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

15. In. construing any provision of the statute, the whole scheme of the Act has to be taken into consideration and the provisions have to be construed in the light of the scheme of the Act The legislative intent behind the definition of the 'Excise Officer' appears to be very clear, [f powers of Excise Officer are conferred on any officer or person, then the legislature intended to consider such officer or person as an Excise Officer. Having regard to the definition of the expression 'Excise Officer', it is not necessary that the officer or person, on whom specific powers have been conferred would be considered to be an Excise Officer only for that purpose. For purposes of presentation of complaint or report in respect of offences enumerated in Section 67(1)(a), no authority is required to be conferred. He should simply be an Excise Officer, although in the last notification such powers have been conferred under Section 67(1)(a), but on that basis it cannot be found in general, that specific power is required to be conferred on all officers and persons under Section 67(1)(a).

16. Shri Shishodia, learned Public Prosecutor, after referring to the relevant provisions of the Act and the Rules and notifications placed strong reliance on a Division Bench decision of the Allahabad High Court in State v. Tillu : AIR1957All654 , where a similar question arose in relation to the provisions of U.P. Excise Act, 1910. The provisions of the U.P. Excise Act were analogous to the provisions of the Rajasthan Excise Act. There was a similar provision under Section 70, like that of Section 67 of the Act. In Section 70 of the U.P. Excise Act it was provided that no Magistrate shall take cognizance of an offence punishable under Section 60, 63 or 65, except on his own knowledge or suspicion or on the complaint or report of an excise officer. In the cases before the Allahabad High Court, the Magistrate took cognizance on the report of the station officer of the police station. The question arose as to whether the station officer is an 'excise officer' within the meaning of Section 70 of the U.P. Excise Act.

Section 3(2) of the U.P. Excise Act defined an 'Excise Officer' as meaning a Collector or any officer or person appointed or invested with powers under Section 10. The provision of Section 10(1)(b) of the Act is analogous to Section 10(2)(a) of the U.P. Excise Act. While dealing with the definition of 'Excise Officer' their Lordships observed that even though one may be a police officer by appointment, one may, for certain purposes, be clothed with the office of an excise officer provided that one is invested by the Local Government or the State Government, by notification with one or more powers under Section 10 of the U.P. Excise Act. And if a police officer is so invested with powers irrespective of the purpose for which the powers may have been conferred upon him, he comes under the definition of an excise officer and therefore becomes entitled to make complaint or report on which a Magistrate can take cognizance of the offences mentioned in Section 70(1)(a) of the U.P. Excise Act.

Their Lordships considered the various notifications, which had been issued by the Local Government conferring powers of entry, inspection, arrest, seizure and detention and it was observed that while the various police officers have been invested respectively with certain specified powers, all of them, from the Chaukidar upwards, fall, by virtue of that investment, within the definition of an 'Excise Officer' in Section 3(2) of the U.P. Excise Act and further observed that it follows, therefore, that all police officers, from chaukidar upwards, are competent as excise officers to make a complaint or report in respect of offences, mentioned in Section 70(1)(a) of the U.P. Excise Act and the proper Magistrate will have jurisdiction to take cognizance of those offences on such a report.

The contention that Sections 48 and 50 of the U.P. Excise Act do not authorise a police officer to make a complaint or report, was repelled on the ground that the words 'Excise Officer' occurring in Section 70(1)(a) were not qualified by some such words as 'authorised to make complaint or report'. It was further observed that a specific authority to make a complaint or report is not necessary in respect of the offences enumerated in Clause (a) of Sub-section (1) of Section 70, is further borne out by a comparison of its language with the language of Clause (b), which speaks of 'an Excise Officer authorised by the Collector in that behalf', but Clause (a) speaks only of an 'Excise Officer.'

This marked difference in the language of the two clauses in the same Sub-section would seem to show that the Legislature did not intend the Excise Officer to be specially authorised to make a complaint or report in respect of the offences enumerated in Clause (a) of Sub-section (1) of Section 70 of the U.P. Excise Act. In that case by notification No. 576 of 13-7-1910, the State Government authorised all police officers-in-charge of stations, among other persons, investing them with the powers specified in Section 50 of the U.P. Excise Act in respect of offences punishable under Section 60 Clauses (b), (c), (d), (f) and (i). The Allahabad High Court has consistently been taking this view. There were other two earlier Division Bench decisions covering this point and several other Single Bench decisions referred to in that case. The Magistrate in the cases before the Allahabad High Court relied on a Single Bench decision, which was dissented from in later decision of that Court. In our opinion, Tillu's case is on all fours and it is not necessary to make reference of the earlier cases decided by the Allahabad High Court.

17. It would be proper for us to consider the views and reasoning adopted by the two learned Judges of this Court expressing contrary opinions. S. N. Deedwania, J., in Laxman Singh v. The State of Rajasthan's case based his views on Section 9(1-A) and it was observed that the State Government is authorised to appoint the other inferior excise officer. This itself suggests that an Excise Inspector is one of the category of the 'other inferior Excise Officer. Support was also taken by the Notification No. F. 49 (1) SR/50 dated 15-5-1951 'quoted at No. 1 above' and further reliance was placed on Rule 88 of the Rules wherein powers have been conferred on all Excise Officers not below the rank of Excise Inspector under Sections 43, 44. 45 and 47 of the Act. Thereafter concluded that the 'scheme of the Act and Rules will go to show that inferior Excise Officers are given different nomenclature for the convenience of the work and one class of such are named as Excise Inspectors, and it would appear that an Excise Inspector belongs to the class of other inferior Excise Officers.' Then also observed that 'this position is further strengthened by the fact that Rajasthan Excise (Preventive Officers Service) Rules, 1967 govern the services of an Excise Inspector. The very fact that the service rules refer Excise Inspector as an officer would conclusively show that an Excise Inspector is nothing but an Excise Officer.'

18. We agree with the conclusion that he reached, but we are unable to subscribe to the whole of the reasoning adopted by the learned Judge. It appears that it was not brought to the notice of the learned Judge that the expression 'Excise Officer' has been denned under Section 3(7) and further it also appears that it was not brought to the notice of the learned Judge that no appointments were made of the Excise Inspectors under Section 9(1-A). Consequently, Notification No. 1 can be of no avail. Similarly the Rajasthan Excise (Preventive Officers Service) Rules, 1967, is in respect of the 'service' as defined in Clause (h) of Rule 2 and the nature of course included in each category of service, is specified in column 2 of the Schedule, which mentions only Deputy Commissioner (Preventive), Excise Officer (Preventive) and Assistant Excise Officer (Preventive). This aspect of the case was not put forward before the learned Judge that powers and duties provided in Chapter VIII of the Act, have been conferred under Section 10 and so the Excise Inspectors have been invested with powers of Excise Officers and as such they are covered within the expression 'Excise Officer' as defined in Section 3(7), but as powers have been invested under Rule 88, so the Excise Inspectors have been rightly considered to be Excise Officers.

19. In Bhagwana's case Cri. Revn. No. 237 of 1976, D/- 28-3-1979 (Raj) it appears that the matter was considered in the light of the provisions contained in Sections 9(1-A), 9(1-B) and 9(3). The matter was not considered in this light that if powers of Excise Officer are invested on any officer or person under the Act, then whether such officer or person can be considered to be an Excise Officer for purposes of Section 67(1)(a). The contention of the Public Prosecutor based on Notification No. 1, was negatived on the ground that it cannot be inferred that by notification it was intended to invest Excise Officers, not below the rank of Excise Inspectors, to file charge-sheet in the Court. We have already held that this notification cannot be pressed into service as if no appointment of Excise Inspectors is made under Section 9(l-A) (in) category. The learned Judge then considered the two notifications issued under Section 9(3) No. 7208 Ex. G/6/62 dated 11-7-1961, RGG Part II (a) dated 17-8-1961 and No. F. 15 (46) Exg. 46, 62, 78, dated 24-1-1962, published in the Rajasthan Gazette, Part IV-C, Extraordinary, dated 26-4-1962, conferring powers on the Deputy Commissioner, Excise and the Assistant Commissioner, Excise, under Section 67(1)(b) and on the basis of these notifications the learned Judge observed that this clearly shows that for the purpose of Section 67, special notifications are issued and there cannot be any implied powers with the Excise Inspectors to file the charge-sheet in the Court for the offence under Section 54 and when argument based on Rule 88 was advanced it was observed that reference to the Rules is not of any help, because it deals only with powers under Sections 43, 44, 45 and 47. With regard to the notification No. F. 49 (1), Sr./50, dated 15-5-1951 it was observed that it relates to powers under Section 15 of the Act only, so far as Excise Inspectors are concerned and it cannot be stretched to the whole Act. After making reference of another notification No. F. 1 (85) FD/Ex/67-(1), dated 18-1-1969, R.G.G., 4 (a), dated 16-10-1969 S.O. 63 conferring powers on Assistant Excise Officer, the learned Judge observed that 'in the absence of any such notification for the Excise Inspectors, and the learned Public Prosecutor concedes that there is none, I find myself unable to agree with the learned Public Prosecutor that under the scheme of the Act, Excise Inspector must be deemed to be an Excise Officer and no notification is required for investing him with any power under Section 67(1)(a), and the Court was competent to take cognizance of the offences on the basis of the charge-sheet filed by the Excise Inspector.' For the above guidance was taken from a Division Bench decision of this Court in State of Rajasthan v. Rana, 1967 Raj LW 559, which we shall presently consider, and the case relied upon by the Public Prosecutor State of Rajasthan v. Masita 1974 Raj LW 541, was rightly distinguished.

20. With all respect to the learned Judge we are unable to agree with the view and the reasoning adopted in Bhagwana's case Cri. Revn. No. 237 of 1976, D/- 28-3-1979 Raj supra. In our considered opinion investment or conferment of specific authority for purposes of filing of complaint or the report under Section 67(1)(a) on any officer, is not necessary. It appears that attention was not invited to the latter part of the definition of the expression 'Excise Officer' and investment of powers on any officer or person under Section 10 of the Act.

21. In State of Rajasthan v. Rana 1967 Raj LW 559 a complaint was submitted by an officer-in-charge Government Railway Police Station, Jodhpur. It was conceded that Shri Tej Raj, Officer-in-charge, was not appointed as an Excise Officer under Section 9 of the Act. A question arose as to whether Shri Tejraj can be deemed to be invested with the powers of an Excise Officer under the Act. A notification, quoted above at No. 4, was referred and it was conceded by the Public Prosecutor that Tej Raj was not an officer of a rank of a sub-inspector or above there appears to be a mistake as the word 'not' is not printed in between the words 'was' and 'an officer' in. the report. It may be pointed out that attention was not invited to the distinction between the provisions of Section 67(1)(a) and Section 67(1)(b). No specific authority was needed for presentation of complaint or report under Section 67(1)(a). Further this argument was not advanced that if any power has been conferred under Section 10(1)(b) on any officer of any other department other than Excise, he would be an 'Excise Officer' within the meaning of Section 3(7). On behalf of the respondents an argument was advanced that in order to prevent undue harassment to the public cognizance under Section 67(1)(a) can be taken if complaint or report is made by an Excise Officer. The contention was advanced in view of the observation in Rana's case. It is true that complaint or report is required to be made by an Excise Officer on which cognizance can be taken, but in the statute itself if powers of Excise Officer have been invested on any officer or person and if such officer or person is deemed to be an Excise Officer, then the complaint or report by such officer would be competent on which cognizance can be taken. We are unable to agree with the contention of the learned Counsel for the respondent that for purpose of Section 67(1)(a), specific authority needs to be conferred and we are also unable to agree with the contention of Shri Gupta that in order to consider an officer or the person as an 'Excise Officer', all the powers of Excise Officer should be conferred on such officer or person.

22. Shri Shishodia also alternatively argued that under Section 67(1)(a) cognizance could have been taken by the Magistrate on his own knowledge or suspicion. In these cases cognizance was in fact taken, so it could be deemed that the cognizance has been taken by the learned Magistrates on any information under Section 190(1)(c) of the Code of Criminal Procedure, 1973. The Magistrate could have adopted that procedure for trial, which could be adopted in cases in which cognizance is taken under Section 190(1)(c). In support of his contention he placed reliance on some case law. We do not consider it necessary to dwell on this alternative submission of Shri Shishodia in view of our finding that Excise Inspectors are Excise Officers.

23. Thus, in view of what we have discussed above, particularly in view of notification No. 3, quoted above, and in view of Rules 88 and 89, Excise Inspectors have been invested with the powers of Excise Officers, and as such, they are Excise Officers within the meaning of Section 3(7) of the Act, so they are competent to make a complaint or the report in respect of the offences enumerated in Section 67(1)(a) on which Magistrate can take cognizance. In this view of the matter both the appeals deserve to be allowed and orders of acquittal passed by the learned Magistrate deserve to be set aside.

24. Accordingly we accept both the appeals, set aside the impugned orders of the learned Magistrate and send the cases back to the learned Magistrate for disposal in accordance with law.


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