Full Judgment
K.P. Balachandran, J.
1. Petitioner is the 2nd accused in Crime No. 7/2003 of Thirupuram Excise Range. The offence alleged as against him is an offence under Section 33(2) of the Abkari Act. The allegation against him is that when an attempt was made to effect arrest and to register a case as against Al for offence under Section 8(i) and 8(ii) of the Abkari Act, obstruction was caused by the petitioner thereto and thereby he has committed an offence punishable under Section 33(2) of the Act.
2. Petitioner seeks for an order quashing Annexure-II final report on the ground that Section 33(2) of the Abkari Act is not a punitive section nor does it prescribe any duty on the part of a citizen not to obstruct the Excise Officer, when only Section 33(2) read with Section 63 of the Abkari Act will be an offence punishable under Section 63 of the Act.
3. It is worthy to note that Section 63 prescribes punishment for offence not otherwise provided for. The Section is extracted below for easy reference.
63. For offences not otherwise provided for: Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine (which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both).
4. In order to have application of Section 63, a person must be guilty of either any actor an intentional omission and that should be in contravention of any of the provisions of the Abkari Act or any rule or order made under the said Act. If so, when there is no punishment prescribed under any other provisions of the Abkari Act or any rule or order made under the said Act. If so, when there is no punishment prescribed under any other provisions of the Abkari Act the person so found guilty, on conviction before a Magistrate, be punished as per the said section. Section 33(2) with its proviso is also extracted below for easy reference.
33(2). An Abkari Officer may without an order without a warrant from a Magistrate, arrest and detain any person who obstructs him while in the execution or discharge of his duty or who has escaped from his lawful custody:
Provided that every person who is arrested and detained in custody shall be produced before the Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
5. The section provides a procedural safeguard for an Abkari Officer to execute his work by effecting arrest and detention of any person, who obstructs him in the execution or discharge of his duty and to arrest and detain any person who has escaped from his lawful custody. The proviso further states that in the event of such detention exceeding twenty four hours that has to be with the authority of a Magistrate. This shows that the provision is incorporated only to enable an Abkari Officer to arrest and. detain any person so as to cause obstruction rendered by him being removed or to arrest and detain a person, on his escape from the lawful custody of an Abkari Officer. If Section 33(2) is interpreted as an offence punishable under Section 63, it would mean that any obstruction caused in the discharge of duty of an Excise Officer will attract only the provisions of Section 63 of the Abkari Act and not the relevant provisions of the Indian Penal Code. The provision can be better understood if the gravity of the offence meted out to an Abkari Officer is magnified. In the course of obstruction to the execution or discharge of his duty it may be that hurt or grievous hurt also may be caused to him. It would be too much to say that in that event also the offence is punishable under Section 63 of the Abkari Act and not under the provisions of the Indian Penal Code.
6. In my view, the provisions under Section 33(2) of the Abkari Act is only an enabling provision and a procedural safeguard to the Excise Officer to effect arrest of the person, who obstructs him in the discharge of the duty and to detain him for a period not exceeding twenty four hours and if need be to obtain appropriate orders from the Magistrate to detain him for any period in excess of twenty four hours so as to have the Abkari Officer enabled to discharge his duty without any such obstruction. The result is that an obstruction caused under Section 33(2) is not by itself an offence punishable under the provisions of the Abkari Act as contended by the Public Prosecutor.
7. In the result, I quash Annexure-II in so far as it relates to the petitioner as the offence alleged against him is only under Section 33(2) of the Abkari Act. This Crl. M.C. is thus allowed.