Andhra HC (Pre-Telangana)
K. Narayana And Anr. vs State Of Andhra Pradesh on 27 March, 1997
Equivalent citations: 1997(1)ALD(CRI)712, 1997(1)ALT(CRI)817, 1997CRILJ3258
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT Y. Bhaskar Rao, J.
1. This petition under Section 482 of the Code of Criminal Procedure is filed to quash the proceedings in C.C. No. 94 of 1995 on the file of the Court of XII Metropolitan Magistrate, Hyderabad.
2. The brief facts of the case are that the Sub-Inspector of Police, Task Force, South Zone, Hyderabad filed charge sheet against the petitioners alleging that on receipt of information that the petitioners are selling toddy without licence to the customers near Moosram bridge, he conducted raid and found the petitioners selling toddy without any excise licence. He took them into custody and seized one wooden case containing 24 toddy bottles, who wooden cases containing empty bottles and cash of Rs. 205/- form the first petitioner and one wooden case containing 15 bottles of toddy, three wooden cases containing empty bottles and cash of Rs. 405/- from the second petitioner. He brought the petitioners along with seized articles before the Sub-Inspector of Police, Malakpet P.S. who registered a case in Cr. No. 4/95 under Section 34(A) of the A.P. Excise Act and sent sample bottles containing toddy to Chemical Examiner for analysis and after investigation filed charge sheet.
3. The petitioners herein filed a petition before the lower Court to discharge them on the ground that the Excise Officer alone is entitled to file charge sheet in respect of the offence committed under the A.P. Excise Act as per the provisions of the A.P, Excise Act and the police officer has no power to file charge sheet. The lower Court dismissed the said petition.
4. The learned counsel for the petitioners contended that the A.P. Excise Act is a special enactment containing procedure of investigation, filing of report after investigation and trial of offences committed under the Act and so the procedure laid down in the Code of Criminal Procedure is not applicable. He further contended that the Excise Officer is competent to file the report of investigation, but not the police officer and that continuation of proceedings initiated on the basis of report of the police officer amounts to issue of process of the Court and therefore the proceedings are liable to be quashed.
5. In view of the above contentions, the important question of law that arises for consideration is :
"Whether the police has got power to file charge sheet in respect of offences under the Andhra Pradesh Excise Act ?"
6. The Andhra Pradesh Excise Act, 1968 is a comprehensive law relating to the production, manufacture, possession, transport, purchase and sale of intoxicating liquor and drugs, the levy of duties of excise and countervaling duties on alcoholic liquors for human consumption and opium, Indian hemp and other narcotic drugs and narcotics. Section 2 deals with definitions. Section 2(11) defines 'excise officer' as :
"Excise officer means the Commissioner, the Collector or any Officer or other person lawfully appointed or invested with powers under the relevant provisions of this Act."
Chapter IV of the Exercise Act deals with the manufacture, possession and sale of excisable articles. Chapter VI deals with licences and permits. Chapter VII deals with offences and penalties. Section 34 provides for penalty for illegal import, export, transport, manufacture, collection or possession or sale of any intoxicant. etc. Section 35 provides for penalty for rendering denatured spirit fit for human consumption. Section 37 provides for penalty for adulteration by licensed vendor or manufacturer. Section 37A provides for penalty for adulteration resulting in death. Section 38 provides for penalty for consumption in chemist's shop. Section 40 provides for penalty for cutting down or destroying excise tress. Section 41 provides for penalty for offences not otherwise provided for. Section 43 fixes the criminal liability of licensee for acts of servants. Chapter VIII deals with detection, investigation and trial of offences. Section 52 empowers the Commissioner or a Collector or any Excise Officer, not below such rank as may be prescribed, or any Police Officer duly empowered in that behalf to enter and inspect any place at any time in which any licensed manufacturer manufactures or stores any intoxicant and examine the accounts and registers and examine, test, measure or weigh any material or intoxicants found in such place. Section 53 empowers any officer of the Government employed in the Excise, Police or Revenue Department of the State, subject to such restrictions as may be prescribed, may arrest without warrant any person for an offence punishable under S. 27 or S. 34 or S. 35 or S. 36 or S. 37 or S. 37A or S. 40A or S. 50 or S. 50A, may seize and detain any excisable or other article which he has reason to believe to be liable to confiscation and may detain and search any person to possession any such articles. Section 53A provides that the officers of the Departments of Police and Revenue shall upon notice given or request made by an Excise Officer, be legally bound to assist him in carrying out the provisions of the Act. Section 54 empowers a Magistrate to issue warrant. Section 55 empowers the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any excise officer not below the rank of an Excise Sub-Inspector, who has reason to believe that an offence under Sections, 34, 35, 36, 37 or 37A has been or is being or is likely to be committed, may enter and search any place and seize anything found therein, which is liable for confiscation, and detain and search and arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. Section 56 provides that any excise officer not below rank of an Excise Sub Inspector may with regard to offences under Sections 27, 34, 35, 36, 37 or 37A or 40A exercise within such area as may be notified in this behalf the powers conferred on an officer in charge of a police station by the provisions of the Code of Criminal Procedure, 1973. And that the area shall be deemed to be a police station and such officer shall be deemed to be the officer-in-charge of such station. Section 57 says that the excise officer, not below the rank of Excise Sub Inspector, shall submit a report, if on investigation it appears that there is sufficient evidence to justify the prosecution of the accused, to a Magistrate having jurisdiction to inquire into or try the case and take cognizance of offences on police reports. Section 58 provides that if any excise officer makes any arrest, seizure or search under this Act, he shall within twenty four hours, send the person arrested or the thing seized to the nearest Magistrate. Section 59 provides that the person arrested under this Act shall be informed the grounds for such arrest.
7. The execise and the police officers both are empowered to enter and inspect the place of manufacture and sale of intoxicant, to arrest any person without warrant, to seize the articles liable for confiscation and to make search without warrant. It is evident from a reading of Sections 52, 53 and 55 that the power is conferred both on the police and execise officer to enter and search any place and seize anything found therein and detain and arrest any person, if he has reason to believe that offence under Sections 34, 35, 36, 37 or 37A has been or is likely to be committed. The Code of Criminal Procedure has empowered the police officer to investigate any cognizable or non-cognizable case and to file a report after completion of investigation. Section 56 of the Excise Act provides that any excise officer, not below the rank of an Excise Sub Inspector, may exercise the powers of a police officer in respect of offence under Sections 27, 34, 35, 36, 37 or 37A of the Excise Act. Section 57 says that the excise officer shall submit a report to a Magistrate having jurisdiction to take cognizance of the offence, if on investigation it appears that there is sufficient evidence to prosecute the accused. The said report will be deemed as a report filed by the police for the purpose of taking cognizance under Section 190 of Cr.P.C. The police and excise officers are empowered to investigate the excise offences. The police officers are not expressly barred by the Excise Act to investigate and file a report in case of commission of an excise offence. As stated supra, power is conferred on excise and police officers to enter, search, seize and arrest the accused. As there is no power to the excise officer to file a report, the Excise Act empowered him to investigate and file report and he may exercise powers of an officer in charge of police station. The police officers will follow the procedure laid down in the Code of Criminal Procedure while dealing with the offences under other laws, if they are not barred under other laws. Thus, it is clear that both the police and excise officers are empowered to investigate and to file report in respect of offences under the Excise Act. In the background of the provisions of the A.P. Excise Act empowering police and excise officers to deal with the offences under the Excise Act, it cannot be said that there is bar on the police officer to investigate and file report in respect of the offences under the Execise Act.
8. Section 4(1) of the Code of Criminal Procedure provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Section 4(2) says that all offence under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code provides that in the absence of a specific provision to the contrary, nothing contained in this Code shall affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Thus, it is manifestly clear that the procedure under the Code of Criminal Procedure is applicable to the offences under the Indian Penal Code. In respect of offences under other laws, the procedure under the Code of Criminal Procedure is applicable, but where procedure is prescribed under special enactment in respect of offences under other law, then the procedure in the Code of Criminal Procedure will not apply. Now, let us turn to the case law on the subject.
9. In Emperor v. Rijhumal v. Valiram AIR 1947 Sind 128 : (1947 (48) Cri LJ 300), the question arose whether the Court can accept the application of the Executive Officer of the Cantonment Board, Hyderabad under Section 267(2) of the Cantonments Act, 1924 to drop the further proceedings against the respondent-accused. The respondent-accused had committed an offence under the Cantonments Act and later it was compounded by the Executive Officer in exercise of the powers vested in him. He made an application to the trial court to drop further proceedings against the respondent. The trial court held that it was bound strictly by the provisions of Code of Criminal Procedure, 1898 and as th case was triable as a summons case the accused could only be acquitted but he could not be discharged. He further stated that if an application under Section 248, Cr.P.C. is made, he would consider it on merits. The Sessions Judge referred the matter to the Sind Chief Court. A Division Bench of Sind Chief Court after considering Section 5 of Cr.P.C., held that as the offence complained of was not an offence under the Penal Code, by reason of Section 5(2) of Cr.P.C., an offence under the Cantonments Act, which is a special Act, can be dealt with according to the procedure prescribed in the Act itself. Thus, the Sind Chief Court accepted the reference and directed the trial Court not to take up further proceedings against the respondent-accused.
10. In re A. S. Krishna , a Division Bench consisting of Rajamannar, C.J., and Umamaheshwaram, J. was posed with a question whether Section 4(2) of the Madras Prohibition Act prevents the Magistrate to discharge an accused if the prosecution fails to establish the offence. The Madras High Court held that Section 4(2) of the Madras Prohibition Act is not inconsistent with the procedure laid down in the Cr.P.C., and Section 4(2) does not prevent the Magistrate in a proper case to discharge the accused if he finds that the prosecution has not established what it has to establish under the provisions relating to the offence with which the accused has been charged.
11. In Kuppusami v. Emperor AIR 1923 Mad 339 : (1923 (24) Cri LJ 335), A Division Bench of the Madras High Court was considering the question whether the police have a right to file charge sheet in respect of an offence under the Abkari Act. The accused was alleged to have committed the offence under Section 55 of the Abkari Act I of 1866. After consisting the procedure empowering the Abkari Officers to conduct investigation and file charge sheet and Section 5(2) of Cr.P.C. the Court held that the submission of charge sheet by the police has deprived the accused of the procedure which they were entitled to under the Abkari Act. It further held that the police have no right to file charge sheet or otherwise to proceed under Chapter XIV of Cr.P.C. in respect of an offence under the Abkari Act as the offence is under a special law and according to Section 5(2), Cr.P.C., it can be investigated and tried only according to the provisions of the special law. In those circumstances, the High Court held that the Abkari officers are alone competent to file charge sheet. But the facts of the present case are different.
12. The question whether the police officer, who is neither a special police officer under the Suppression of Immoral Traffic in Women and Girls Act, 1956 nor a police officer subordinate to a special officer, can validity investigate the offences under the above said Act, was dealt with by the Supreme Court in Delhi Administration v. Ram Singh . The Supreme Court held that the expression "dealing with the offence" appearing in Section 13(1) of the Act includes the power of investigation and that if the power of the special police officer to investigate into the offence is not held to be exclusive, there will be two investigations carried on by two different agencies, one by special police and the other by ordinary police. It, therefore, held that the special police officer and his assistant police officers are the only persons competent to investigate offences under the Act and the police officers, who are not specially appointed as special police officers, cannot investigate the offences under the Act, even though they are cognizable offences.
13. In Raghbir v. State of Haryana , the question that arose before the Supreme Court was whether a person under 16 years of age and accused of an offence under Section 302, I.P.C., can get the benefit of the Haryana Children Act, 1974. The Haryana Children Act came into force on 1-3-1974 and the Cr.P.C. on 1-4-1974. The Supreme Court held that if there is any conflict between the provisions of the Act and the Code, the provision of the Act repugnant to any provision of the Code will be void to the extent of repugnancy in view of Art. 254(1) of the Constitution. It held that Section 27 of Cr.P.C. which provides trial of a child under 16 years of age by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, is an enabling provision and has not affected the Haryana Children Act in the trial of delinquent children for offences punishable with death or imprisonment for life.
14. In Rohtas v. State of Haryana , the Supreme Court was considering whether Cr.P.C., overrules the provisions of Haryana Children Act. On considering Section 5 of Cr.P.C. it held that the Haryana Children Act was in force when Cr.P.C. was passed and therefore the Haryana Act far from being inconsistent with Section 5 of the Code of 1973 appears to be fully protected by Section 5 of Cr.P.C. This decision was considered by the Supreme Court in Raghbir's case (1981 Cri LJ 1497) (supra) and the Supreme Court opined that Section 27 of Cr.P.C. was not brought to the notice of the Court in Rohtas's case (1979 Cri LJ 1365) (supra).
15. In Emperor v. Mahomed Usman AIR 1933 Sind 325 : (1934 (35) Cri LJ 129), the Full Bench of Singh J. C's Court following the decision in Kuppuswami's case (1923(24) Cri LJ 335) (Mad) (supra) held that Chapter XIV of Cr.P.C. is controlled by Section 5(2) and hence the police have no power to effect searches or arrears or to send up cases for trial for offences falling under the Bombay Abkari Act, and no such power can be presumed.
16. In Ajmer Singh v. Union of India, , the Supreme Court observed that the relevant chapters of the Army Act, the Navy Act and the Air-Force Act embody a completely self-contained comprehensive Code specifying various offences under those Acts and prescribing procedure for detention and custody of offenders, investigation and trial of the offenders by Courts-Martial, the punishments to be awarded for various offences, etc. These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on Courts-Martial and prescribing a special form of procedure for trial of offences under those Acts, It held that the effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code inapplicable in respect of all matters covered by such special laws.
17. The one-line of cases referred to above lay down the principle that where special law provides exclusive procedure to deal with offences under the sid law, the procedure laid down in the Code of Criminal Procedure is not applicable. Now, we may refer to the other line of cases.
18. In Delhi Spl. Police Estb. v. S. K. Koraiya the Supreme Court while considering certain offences, which are triable both by the ordinarily criminal Courts and the Court-Martial, held that Section 549 of the Code of Criminal Procedure, 1898 is applicable and the ordinary criminal Court and the court-martial have concurrent jurisdiction to try the accused in respect of those offences.
19. In Narcotics Control Bureau v. Kishan Lal , the Supreme Court has considered the scope of High Court's power under Section 439 of Cr.P.C. to grant bail in certain offences under the amended Section 37 of the Narcotic Drugs and Psychotropic Substances Act which places certain limitations. Section 37 of the NDPS Act provides that notwithstanding anything contained in the Cr.P.C. 1973 no person accused of an offence prescribed therein shall be released on bail, unless the conditions contained therein were satisfied. The Supreme Court considering the object of that provision held that the powers of the High Court to grant bail under Section 439, Cr.P.C. are subject to the limitations contained in the amended Section 37 of NDPS act and in case of inconsistency between Section 439, Cr.P.C. and Section 37 of NDPS Act, Section 37 prevails.
20. In State of Punjab v. Raj Kumar , the Supreme Court considering the scope of Rule 16.38 of the Punjab Police Rules, which mandates the investigation of cases pertaining to departmental enquiries and holding of departments in accordance with the procedure prescribed thereunder, held that the rule does not override the provisions of Cr.P.C., in terms of Sections 4 and 5 of the Code. The procedure envisaged by the rule is for effective cheek being exercised against victimisation of efficient and honest police officers on the one hand favouritism being shown to the delinquent police officers on the other. The rules were not intended to replace and certainly cannot override the provisions of Cr.P.C.
21. In State of Maharashtra v. Jayantilal , the State had filed the appeal by special leave against the decision of a Full Bench of the High Court of Bombay, which held that (1) by insertion of Sections 22-A and 22-B into the Forward Contracts (Regulation) Act, 1952, the application of provisions of Section 5(2) of Cr.P.C., in respect of offences under the Act was not excluded (2) the manner of search and seizure under the Code and under Section 22-A of the Act were different and (3) the presumption contemplated in Section 22-B is confined to books of account and other documents seized pursuant to warrant issued under Section 22-A(1) of the Act and not to documents seized in exercise of powers under the Code, the Supreme Court considering the scope of Sections 22-A and 22-B held that the provisions of the Code of Criminal Procedure apply to investigation of offences under the Act, that Section 22-A(1) of the Act is a special provisions prescribing a particular procedure of search and seizure and that to have the benefit of Section 22-B, the prosecution must have carried on the search and seizure of books of account and documents in the manner prescribed under Section 22-A(1) of the Act. It further held that the existence of twin procedures for investigation and search and seizure are not anamolous because in one case the normal rule of evidence would apply and in the other, where special mode has been invoked, presumption would arise.
22. The principle laid down in the above line of cases is that though the procedure is provided in a special law keeping open the application of the Code of Criminal Procedure to the extent indicated therein, the application of Code of Criminal Procedure in toto is not excluded.
23. From the above two-lines of cases, it can, thus, be deduced that where special law provides exclusive procedure for dealing with the offences under such law, the application of the Code of Criminal Procedure is excluded as per Section 5 of the Code and that where special law has not excluded entirely the application of the Code of Criminal Procedure and empowered the officers under special law also to deal with the offences, it cannot be said that application of Code in toto is excluded, particularly when the special law confers power on both the officers.
24. In the present case, as per the provisions of the Excise Act, the excise officer and the police officer both have the power to enter any place, search, seize anything found therein and to arrest the accused of the offence under the Act. As there is no power to the excise officer to file charge-sheet in the Code of Criminal Procedure, the Excise Act conferred that power whenever he deals with the offences under the said Act. By that itself, it cannot be said that the Police officers, who investigate the offences according to the provisions of the Act have no power to conduct investigation and file charge-sheet Search, seizure and investigation are procedural provisions provided to deal with the offences under the Excise Act. It is settled principle of law that the procedural provisions must be read in the object and purpose of the Act. The main object of the Excise Act is to regulate the production, manufacture, possession, transport, purchase and sale of intoxicating liquor and drugs. Therefore, the contention that the police have no power to conduct investigation and file charge-sheet in respect of offences under the A.P. Excise Act is unsustainable. We, thus, answer the question in the affirmative.
25. In the result, we see no grounds to quash the proceedings in C.C. No. 94/95 on the file of the Court of XII Metropolitan Magistrate, Hyderabad. The criminal petition is, therefore, dismissed.
26. Petition dismissed.