ORDER
1. This petition filed challenging the registration of FIR in Cr. No. 97 of 2001 by the Inspector of Ashoknagar Police and continuation of investigation in the said case. The Assistant Commissioner of Police, Ulsoor-gate Sub-Division on 10-2-2001 made surprise check of the premises of E.T. Club, Residency Road, Bangalore and found that as many as 26 children ranging age group between 13 to 19 wore being served with liquor. The petitioners 1, 4 and 2 are the accused who were said to be the Managing Committee Members of the Club and petitioners 3, 5 and 6 are the employees who said to have served the liquors to the children, contrary to the provisions of Sections 36(1)(g) and 38-A of the Karnataka Excise Act read with Rules 10(1)(e) and 11 of the Karnataka Excise Licences (General Conditions) Rules, 1967. Under the provisions of Section 36(1)(g) of the Act shall on conviction be punished with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both.
2. The provisions of Section 41 of the Excise Act reads thus:
'41. Criminal liability of licensee for acts of servants.-
Where any offence under Section 32, Section 33, Section 34, Section 36 or Section 37 is committed by any person in the employ and acting on behalf of the holder of a licence or permit granted under this Act, such holder shall also be punishable as if he had committed himself the said offence, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence: Provided that no person other than the actual offender shall be punishable under this section with imprisonment, except in default of payment of fine'.
3. In the said provisions the vicarious liability is fastened on the licence holder even if the employees have contravened any of the provisions of Sections 32, 33, 34, 36 and 37 of the Act. However, the licence holder can avoid the liability of punishment if he could show that he has no complicity with the act complained of and has taken due and reasonable precautions to prevent the commissions of such offences.
4. It is the contention of the Counsel for the petitioner that by virtue of the provisions of Chapter II of the First Schedule of the Criminal Procedure Code the measure of punishment indicated for the offence being less than 3 years. The offence being non-cognizable and as such the police have no power of investigation without the permission of the Court under Section 155 of the Criminal Procedure Code. Therefore, the entire registration of the case and continuation of investigation is illegal and to be quashed.
5. The State Public Prosecutor brought to the notice the provisions of Section 52 of the Excise Act which reads thus:
'52. Power to arrest without warrant to seize articles liable for confiscation and to make searches.--(1) Any officer of the State Government (employed) in the Excise Department, or any officer of the Police or Revenue Department empowered by the State Government, in this behalf subject to such restrictions as may be prescribed, may-
(a) arrest without warrant any person [for] an offence punishable, under Section 32, Section 33, Section 34, Section 36 or Section 37;
(b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force, relating to excise revenue; and
(c) 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.
(2) When any person is accused or is reasonably suspected of committing an offence under this Act, other than an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 and on demand of any such officer as aforesaid, refuses to give his name and residence or gives a name and residence which such officer has reason to believe is false, he may be arrested by such officer, in order that his name and residence may be ascertained'.
6. The definition of the cognizable offence under Section 2(c) of the Criminal Procedure Code is given thus:
' 'Cognizable offence' means an offence for which and 'cognizable case' means a case in which a Police Officer may in accordance with the First Schedule or under any other law tor the time being in force arrest without warrant'.
7. The Code of Criminal Procedure is a general enactment and the provisions of general enactment will prevail when there is no contra provisions in any other special enactment. The provisions of Karnataka Excise Act and the provisions in Section 52 of the Act clearly empower the Police Officers to conduct investigation and to arrest without any warrant any of the persons who are committing the offences punishable under Sections 32, 33, 34, 36 and 37 of the Act. May be the offence under Section 38-A would be non-cognizable as it is not covered by sub-section (1)(a) of the provisions of Section 52 of the Act, But nonetheless, the offence punishable under Section 36(1)(g) comes within the definition of cognizable offence in view of the provisions of Section 52 of the Act. Therefore, the contention of the Counsel for the petitioner that the offences mentioned are non-cognizable and police have no jurisdiction cannot be countenanced.
8. The Counsel for the petitioner relied on the ruling of the Supreme Court in Pillani Investment Corporation Limited v Income-tax Officer, 'A' Ward, Calcutta and Another , where the proposition of law is laid down that in non-cognizable offence police have no power of investigation without the consent of the Court and another decision of this Court in the case of Sudarshan Manchanda v State of Karnataka , it is also the case which pertains to a non-cognizable offence and it held that the police have no power of investigation without the permission of the Magistrate. Both the decisions relied on by the Counsel has no application on the facts of the case in view of the clear provisions of Section 52 of the Excise Act, the offence as mentioned comes within the definition of Section 2 of the Code of Criminal Procedure.
9. Under the circumstances, I do not find any merit in the petition. Accordingly, the petition is dismissed.