Rajasthan High Court - Jodhpur
(Nemichand vs . State Of Rajasthan) on 11 November, 2014
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014
(Nemichand Vs. State of Rajasthan)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S. B. CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) DATE OF ORDER : 11.11.2014 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. N.K.Bohra, for the petitioner.
Mr. V.S.Rajpurohit, Public Prosecutor.
<><><> Reportable The instant second application for anticipatory bail under Section 438 Cr.P.C. has been preferred on behalf of the petitioner in connection with F.I.R. No.91/2014 registered at Police Station Nagori Gate, District Jodhpur for the offences under Sections 19/54 of the Rajasthan Excise Act.
Phusa Ram, Head Constable posted at Police Station Nagori Gate, Jodhpur received an information through his informer on 6.7.2014 at 5.30 AM that the petitioner would be carrying illicit liquour on his white coloured scooty and would be going towards his house. If a trap is laid, the accused could be apprehended with heavy quantity of illicit liquour. The Constable took the information down in writing and thereafter proceeded to lay a cordon at the Hanuman 2 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) Chowk for trapping the accused. At about 6.10 AM in consonance with information received by the Constable, the accused was seen coming from Bheel Basti towards Hanuman Chowk on his white coloured scooty. Seeing the Police cordon, the accused left his scooty bearing registration No.RJ19.MS.9365 on which some stuff was loaded and started running towards the lane No.7 of Kalal Colony. He was pursued but managed to escape from between the houses. The scooty left by the accused at the road was inspected. It was seen that a gunny bag was tied on the pillion seat of the scooter and some cartons were lying at its footrest. Witnesses from the nearby locality were requested to participate in the seizure proceedings but as the accused is a known liquour smuggler and is an influential man, nobody from the locality agreed to participate in the seizure proceedings. Accordingly, two Constables from the Police party were appointed as Panch witnesses and search was initiated. From inside the bag tied on the seat of the scooty, two cartons of Royal Stag liquour having 12 bottles each meant for sale in Haryana and one carton containing 28 quarters of Moonwalk Premium Dry Gin were found. The three cartons lying on the footrest of the scooty were of Officers Choice Superior Whisky containing 48 quarters of liquour each. The illicit liquour was seized. The Constable prepared the search and seizure memo and thereafter, proceeded to the Police Station Nagori Gate and 3 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) lodged an FIR No.91/2014 against the petitioner accused for the offence under Section 19/54 of the Rajasthan Excise Act. The accused earlier approached this Court by way of an anticipatory bail application No.6608/2014. This Court dismissed the bail application by order dated 22.7.2014 observing that the same was not maintainable in view of the bar contained in Section 49 of the Excise Act. Now, he has preferred the second prearrest bail application.
Learned counsel for the petitioner submits that the first anticipatory bail application preferred on behalf of the petitioner was dismissed in absence of the petitioner and his counsel and thus, the instant second bail application has been preferred under changed circumstances. Learned counsel submits that the validity of the search and seizure proceedings undertaken in this case are hit by a statutory bar as Police Constable, who conducted search and seizure was incompetent to perform such functions. Thus, he urged that the petitioner deserves to be granted anticipatory bail. He contends that the search and seizure in this case was undertaken by a Police Head Constable from a scooter, which is covered in the definition of a place within the meaning of Sections 3(19), and 47 of the Act. As per Section 47 of the Excise Act, search and seizure proceedings from inside a place can only be undertaken by an officer not below the rank of an Excise Officer, SHO or Sub Inspector of the Police Station. He 4 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) urged that since the search and seizure proceedings of this case were conducted by the Head Constable, who is not empowered to do so, such proceedings are wholly illegal and vitiated. He thus prayed that the petitioner deserves to be granted anticipatory bail.
Learned Public Prosecutor opposed the submissions advanced by the learned counsel for the petitioner and urged that the petitioner was apprehended whilst plying illicit liquor on his scooter at a public place and thus, the provisions of Section 45 of the Act would apply and as such, the recovery proceedings conducted by the Police Head Constable are lawful. He, therefore, prays that the anticipatory bail application should be dismissed.
Heard and considered the arguments advanced at the bar. Perused the record.
The relevant provisions of Excise Act which are germane for deciding the controversy arising in the instant bail application are reproduced hereinbelow:
"3(19). "Place" includes a house, building, shop, room, booth, tent, vessel, boat, raft, vehicle and enclosure.
45. Power of arrest, seizure and detention.- Any officer of the Excise, Police, Salt, Customs Narcotics or Land Revenue Department, not below such rank and subject to such restrictions as the State Government may prescribe, and any other person duly empowered in this behalf may arrest without warrant, any person found committing an offence 5 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) punishable under this Act and may seize, and detain any excisable article or other article which he has reason to believe to be liable to confiscation under this Act or other law for the time being in force relating to excise revenue, and may 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. "
(emphasis supplied)
47. Power of Excise Officer to search without warrant.- (l) Whenever an officer of the Excise Department not below such rank as the State Government may prescribe has reason to believe that an offence punishable under this Act has been, is being or is likely to be committed in any place, and that search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence he may, at any time by day or night enter and search such place: -
Provided that such officer shall before entering such place record the grounds of his belief as aforesaid.
(2) Every Excise Officer as aforesaid may seize any thing found in such place 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 such offence as aforesaid.
(Emphasis supplied)"
The State in exercise of the powers conferred by Section 10 of the Act has issued a notification No.F.1(52)E & T/61, dated 9.9.61, RGG(1) V-C dated 26.10.1961, which reads as under:-6
S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) "Notification No.F.1(52)E & T/61, dated 9.9.61, RGG(1) V-C dated 26.10.1961.
In exercise of the powers conferred by section 10 of the Rajasthan Excise Act, 1950 (Act No.11 of 1950) and in supersession of this Department Notification No.F.49(1) SR/50, dated the 15th May 1951 published in the Rajasthan Gazette Vol.III Pt.I of 1951 the State Government hereby orders that the officers of Police and Revenue Department not below the rank specifided hereunder shall exercise the powers and perform the duties under the sections mentioned against them.-
1 Naib Tehsildar, Section 47
Revenue and above
2 Sub-Inspector of Sections 44, 47 and
Police 67(1)(a) of the retail
licences granted for
sale of liquor under
the Act.
3 All officers of Police Section 45 except in
and Revenue respect of the retail
including Constables licences granted for
Chowkidars and sale of liquor under
Patwaris the Act.
From a bare look at the aforesaid notification, it is evident that all officers of Police and Revenue including Constables are authorised to exercise powers of search and seizure under Section 45 of the Act.
Learned counsel for the petitioner relied upon Sections 3(19) of the Excise Act and submitted that by way of an amendment made in the Section in the year 2007, a 'vehicle' has been included in the definition of a 'place'. As a vehicle has been brought under the definition of place, it would necessarily imply that only an officer authorised under 7 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) Section 47 of the Excise Act would be empowered to conduct the search thereof. He contends that the State Government has authorised officers above the rank of Sub Inspector of Police to conduct search and seizure proceedings under Section 47 of the Act and therefore, the search proceedings conducted in this case by the Head Constable are vitiated as being without lawful authority and therefore, the petitioner's proposed arrest in the case is totally unwarranted.
Shri Bohra tried to impress upon this Court that the search in this case was conducted under Section 47 of the Rajasthan Excise Act as the vehicle from which the recovery was effected is covered under the definition of place by virtue of the amendment brought about in Section 3(19) Cr.P.C. in the year 2007. The said argument though appears attractive at first sight but is apparently fallacious. Section 47 clearly envisages that whenever an authorised officer of the Excise Department has reason to believe that an offence punishable under this Act has been, or is being or is likely to be committed "in any place", then he has the authority to "enter and search" such place at any time by day or night without procuring a search warrant. The scope of Section is specifically restricted to "entry and search from inside a place". Since the recovery in the case at hand was effected from a two wheeler owned by the petitioner, at a road being a public place, obviously it is not a situation wherein the seizing Constable 8 S.B.CRIMINAL MISC. II BAIL APPLICATION NO.8109/2014 (Nemichand Vs. State of Rajasthan) entered into a place as defined under Section 3(19) of the Act and effected the search and seizure. As it is not a case involving seizure being made after entering into a place, the provisions of Section 45 would apply and not those of Section
47. As per the notification of 1961, a Constable has been authorised by the State Government to conduct search and seizure in cases covered by Section 45 of Rajasthan Excise Act. Thus, the search and seizure proceedings which were undertaken by Head Constable in this case were perfectly valid and cannot be called into question.
The bail application thus being bereft of any merit is hereby rejected.
(SANDEEP MEHTA), J.
/tarun/