Full Judgment
P.V. Narayanan Nambiar, J.
1. A common question arises in these Criminal Miscellaneous Cases and so they are being disposed of by a common order.
2. Reports are filed by the Excise Inspectors in the Court of Judicial First Class Magistrate/Chief Judicial Magistrate alleging offence under various sections of the Abkari Act including Section 57A of the Abkari Act (hereinafter referred to as 'the Act'). The Excise Inspector and party conducted search of liquor shops belonging to the accused and took samples of liquor which was sent to the chemical examiner who reported that the same contained noxious and other prohibited articles which are injurious to health and hence it is alleged that they committed offence punishable under Section 57A of the Act as well.
3. The prayer in the petitions is to quash the proceedings pending before the respective courts on the ground that the Excise Inspectors are not authorized to conduct search, seizure, take samples from the arrack shops when offence alleged to have been committed is punishable under Section 57A of the Act and to file a report before the Court.
4. Section 2(6) of the Act defines Abkari Inspector thus :
'Abkari Inspector' means an officer under Section 4, Clause (d).'
Section 4(d) empowers the Government to appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act. In exercise of the powers conferred under Section 4 of the Act, Notification, SRO 234/67 has been issued on 10-8-1967 by which all officers in the Excise Department not below the rank of Excise Inspector are appointed to perform the acts and duties mentioned in Sections 40 to 53 inclusive of the Act within the area for which they are appointed. It is not disputed that the Excise Inspectors who conducted the search, took samples and filed the reports are not appointed within the area where the respective shops are situated.
5. Relying on Sections 30, 31, 32, 34 and 50 of the Act, Counsel for the petitioners argued that the powers conferred on the Abkari Officers under those Sections do not take in to deal with the case which comes under Section 57A of the Act. Section 50 of the Act empowers the Abkari Inspector to file a report before the Court having jurisdiction to try the case including the name of offenders and the articles seized. In such cases, the Magistrate is empowered to inquire into such offence and try the persons accused thereof in like manner as if complaint had been made before him as prescribed in the Code of Criminal Procedure. It was argued by Counsel for the petitioners that it is only Section 50 of the Act which empowers the Abkari Inspector to file a report and that too before the court which the Magistrate is empowered to try and as offence punishable under Section 57A of the Act is triable exclusively by the Court of Sessions, the Abkari Inspector is not competent to file the report in a case punishable under Section 57A of the Act. It was also pointed out that appropriate amendments have been made by the Abkari (Amendment) Ordinance, 1997 which came into force on 3-6-1997 only incorporating suitable provisions in the Act which empowers the Inspector to deal with cases punishable under Section 57A of the Act and to file report before the Court under Section 50 of the Act.
6. Section 31 of the Act is pressed into service by the Prosecutor who argued that despite the fact that Section 57A is not specified in Sections 30 and 31 of the Act, the Abkari Inspector has got power to deal with any offence under the Act. Section 31 of the Act is extracted hereunder :
'Power to certain abkari and police officers to search houses, etc., without warrant. - Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under Section 8 or Section 15C or Section 55 or Section 58 or Section 56A or Section 57 or Section 58 or Section 58A or Section 58B of this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.'
The latter part of Section 31 empowers the Abkari Officers to search any place and seize anything found therein which he has reason to believe to be liable to confiscation under the Act and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under the Act.
7. When an Abkari Inspector has reason to believe that an offence under the Act is committed, he shall forward a report to the Magistrate setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which may be necessary to produce before him. In such event, the Magistrate shall inquire into the offence as if the complaint had been made before him as prescribed in the Code of Criminal Procedure. The Magistrate of the First Class is empowered to take cognizance of the offence upon receiving the complaint which constitute an offence. When the complaint is received, the Magistrate taking cognizance of the offence shall examine upon oath the complainant and his witnesses present. But, if the complaint is made in writing, the Magistrate need not examine the complainant and his witnesses if he is a public servant acting or purporting to act in the discharge of his official duties or the court has made the complaint. The report filed by the Excise Inspector can be treated as a complaint in which case the Excise Inspector being a public servant acting in the discharge of his official duties, the Court is not obliged to examine the complainant and his witnesses. But, as the offence is exclusively triable by the Court of Sessions, he shall call upon the complainant to produce witnesses and examine them on oath as provided in the proviso to Section 200(2) Crl. P.C.
8. A Division Bench of this Court on the decision reported in State of Kerala v. Balakrishnan, 1991 (2) KLT 323 held that if a report is filed under Section 50 of the Act, before committing the accused to the Court of Session, an enquiry under the proviso to Section 202(2) Crl. P.C. should be conducted by the Magistrate who shall call upon the complainant to produce all the witnesses and shall examine them on oath and only after complying with the enquiry, the Magistrate shall commit the case to the Court of Sessions. The provisions contained in Section 202(2) Crl. P.C. is mandatory in nature and the court is obliged to follow the same. If the accused is committed to the Court of Session without complying with the above provisions, it will amount to violation of the mandatory provisions contained in the Code.
9. Counsel for the petitioner placed reliance on the decisions reported in State of Kerala v. V.P. Enadeen, 1971 KLT 19, Prabhakaran v. Excise Circle Inspector, 1992 (2) KLJ 880 and Abdul Rehman v. State of Kerala, 1995 (1) KLT 234 (FB) and argued that when a particular officer is not empowered to conduct investigation and file final report under a particular statute, the complaint filed by him is not maintainable and hence liable to be quashed. Though I am in respectful agreement with the proposition laid down in the above decisions, the decisions could be distinguished on facts. Those are cases where investigation was conducted by the authorities who were not competent to do so. But in the instant case, apart from the fact that no investigation was conducted by the Excise Inspector, he is legally competent and empowered to conduct search, seize prohibited articles, arrest the accused, release him on bail or forward his complaint in the court and file a report bringing to the notice of the court the commission of the offence. So, the principles laid down in the decisions cited above are not applicable to the facts of the case. Hence it is held that the filing of the reports by the Excise Inspectors could be treated as complaints and the court is competent to take cognizance of the same by virtue of the provisions contained in the Code of Criminal Procedure. Hence, the prayer for quashing cannot be allowed and the prayer is, therefore, rejected.
10. In certain cases which I am disposing of by this Order, I am told that enquiry under Section 202(2) Crl. P. C. is not conducted by the Magistrate. Certain others in which offence under Section 57A is alleged to have been committed are being tried by the Judicial First Class Magistrate. Yet another set of cases are there in which the Judicial First Class Magistrate without conducting an enquiry as provided under Section 202(2) Crl. P. C. committed them to the Court of Session. So, there will be a direction to the Judicial First Class Magistrate's Court/Court of Session before whom the cases were pending to dispose of the same in accordance with the directions and observations contained in the order.
The Criminal Miscellaneous cases are disposed of as above.