1. The petitioner has been convicted of having committed offences under Section 188 (2) of the Indian Penal Code and Section 55 (b) of the Abkari Act.
2. The facts found were that he was discovered by a Police Officer on 20th March, 1924 selling arrack in his shop during a festival day at Mangalagiri at 6-10 P. M., 7-30 P. M and 10-30 P. M., the former sales being in contravention of an order promulgated by the District Collector, and the latter sale being in contravention of the terms of his license. The conviction under Section 188, Indian Penal Code, was for the former sales and that under Section 55 (b) of the Abkari Act for the latter.
3. It is contended for the petitioner first that Section 188, Indian Penal Code, will not apply to such a case : and we think this is so. There is here no question or proof of causing or tending to cause obstruction, annoyance or injury to any one, and it does not follow, as the Lower Courts seem to think, as a matter of course, that selling drinks will lead to riots or disturbance. We are of opinion that the conviction under Section 188, Indian Penal Code, will not stand.
4. The next point raised is that the conviction under Section 55 of the Abkari Act cannot stand because there is no report by an Abkari Inspector on which the Magistrate could take cognizance of the offence. The Public Prosecutor contends that the Magistrate is empowered in law to take cognizance of such an offence on the report of a Police Officer and without any report by an Abkari Inspector. We have been taken through several sections of the Act an this connection and the more we examine these the more difficult it is to extract what the Legislature intended to lay down as the proper procedure. ' The section which normally gives jurisdiction to a Magistrate 0 try an offence under Section 55 is Section 50, which certainly implies that where the offender is in custody or has given bail for his appearance, the Magistrate must wait for the report of an Abkari Inspector : and so far, this is in the petitioner's favour. The Public Prosecutor contends, however, that there are sections which imply that a Police Officer has power to arrest an offender under Section 55, admit him to bail and send him direct to the Magistrate without the intervention of the, Abkari Inspector at all, and this must imply that the Magistrate must act under the Criminal Procedure Code and take cognizance of such an offence under Section 190 of that Act on a Police report. Section 31 of the Abkari Act empowers a Police Officer to arrest any one found by him on search in any place and believed to be guilty of an offence under the Act, and to admit him to bail for his appearance, before a Magistrate or an Abkari Inspector, '' as the case may be ' what this last phrase is intended to mean is obscure. Section 34 empowers a Police Officer to arrest any one found committing an offence punishable under Section 55 and to admit him to bail to appear before an Abkari Officer having jurisdiction to inquire into the case. It is notable that the word ' Magistrate ' is not included in this section although it appears in Section 31. The Public Prosecutor contends that the omission is accidental, but we cannot supply in any statute words which are not there. The procedure begun under Section 34 seems to contemplate, in the case of a person arrested by the Police for committing an offence under Section 55, that the person be admitted to bail to appear before an Abkari Officer having jurisdiction to inquire into the case and presumably also that information of the offence be forwarded, as Section 38 would imply. If bail is not forthcoming or is not accepted by the Police Officer, he is bound under Section 40 to forward the offender to an Abkari Inspector if there be one within 10 miles, or to the Police Station; and, if he is sent to the Police Station, the Police Station House Officer shall admit him to bail for his appearance before the Abkari Officer as aforesaid meaning apparently an Abkari Inspector appointed under Section 4 (d) of the Act or send him in custody to him. Then the Abkari Officer has to hold an enquiry and forward the case to the Magistrate for trial.
5. So far is fairly plain. But under Section 41 the Police Station House Officer apparently has an option of not bailing an arrested offender to appear before an Abkari Officer, but of bailing him to appear before a Magistrate and the same cryptic phrase as in the proviso to Section 31 ' as the case may be' appears. This section by force of the terms of 3. 40 would seem to apply such a procedure even to the case of persons referred to in Section 34, that is, 'found committing an offence under Section 55 in any public thoroughfare or open place other than a dwelling house,' although under Section 34 itself the officer who arrests is not given the power to send the offender ' before a Magistrate, as the case may be ' in Section 41 only to cases of arrest under Section 31, under which the offender may be sent before a Magistrate.
6. The net result seems to be this, that an offender arrested under Section 31 may be bailed to appear before either a Magistrate or an Abkari Inspector, while one arrested under Section 34 can be sent only before an Abkari Officer. If the offender is sent under either section before an Abkari Officer, there is an enquiry under Section 40 (3) and the offender is sent under Section 50 with a report to the Magistrate for trial. But there is nothing in the Act to indicate what is the procedure to be followed when the offender is sent under Section 31 direct to a Magistrate.
7. A still more serious lacuna in the procedure prescribed is that there is no provision at all for a case where the offender is not placed under arrest. The only section providing for a preliminary enquiry before trial is Section 40, and that applies only to cases of offenders brought--custody or bailed after arrest to appear before the officer holding the enquiry. The Abkari Act is thus not self-contained in the matter of the procedure for the investigation of offences under Section 55. In such a case the criminal procedure to be followed is laid down in Section 5 (2) of the Criminal Procedure Code t6 be under that Code. Now in the case before us, so far as we have the records before us, it does not appear that the accused was ever arrested or bailed out before the trial began. In any case the offence having been committed in accused's shop would fall under Section 31 and not under Section 34, and the police would have authority to send him direct before a Magistrate. It is therefore a case to which Section 190 (1) (b) of the Criminal Procedure Code will apply. We cannot therefore hold that in this case there has been any error in procedure or lack of jurisdiction. We have been referred to a reported case of this Court in Kuppuswami Naidu, In re (1922) 44 MLJ 231 but the report does not make it clear whether that was a case initiated under Section 31 or 34 of the Abkari Act or whether the accused was arrested at the time of committing the offence. We have looked into the printed papers of that case, but they throw no further light on the matter. We are unable therefore to regard this ruling as necessarily applicable to the present case. A close examination of the provisions of the Abkari Act reveals as we have shown, that the Act is not self-contained in the matter of procedure, and that we must fall back on the Criminal Procedure Code to fill up the blanks in the procedure prescribed by the Abkari Act.
8. The present case is complicated by the fact that the original case investigated included in addition to an offence under the Abkari Act an offence under the Indian Penal Code--a non-cognizable offence. In such a case the Police Officer would probably be correct in taking up the more serious offence as the principal offence, that is, the one in which he could arrest without a warrant, namely, Section 55 of the Abkari Act, and he will probably be correct in following the provisions of that Act, so far as it can be done, rather than of the Criminal Procedure Code; and, if he can follow the provisions of both by ensuring that the accused should appear before the Magistrate it is obviously his duty to do so. The same procedure would be the proper procedure for a Police Officer to adopt when he is confronted with an offender whose offences are both under Section 55 of the Abkari Act and a cognizable offence under the Indian Penal Code.
9. We are therefore not prepared to interfere with the conviction under Section 55 of the Abkari Act; but as the conviction under Section 188, Indian Penal Code, fails, the sentence will have to be reduced and we reduce it to the period of imprisonment already undergone, namely 20 days, while maintaining the fine imposed. The bail bond will be cancelled.