West Bengal . Vs. Rashmoy Das & Ors 
INSC 409 (1 December
M.B.Shah THOMAS, J.
High Court seems to have pre-empted launching of prosecution proceedings
against the respondent as the High Court pre-maturely stepped in with an order
of West Bengal has therefore challenged the said
order of the High Court in this appeal by special leave.
facts which appellant has set up against the. respondents which led to the
aforesaid order are the following:
search was conducted by the officers of the Excise Department of the West
Bengal State, at the office-cum- godown of an institute called M/a Homeo Implex
India Private Limited on 22.3.1996. A huge quantity uf spirit (9,683 litres)
was seized therefrom. As the storing of such spirit, according to the officers,
was without support of any valid authority, they took samples from the
contraband and forwarded them to the Chemical Examiner for the purpose of
testing them in the laboratory. On the same day the officers arrested two
persons. They were produced before the Sub-Divisional Judicial Magistrate, Alipore
who later released them on bail. The three respondents in thia appeal moved the
sessions court for anticipatory bail and the sessions judge granted an order in
their favour on 16.4.1996. .1 On 19.10.1935, the Chemical Examiner forwarded
the report of analysis of the samples. The officers of the Excise Department
took the view that respondents, besides those who were arrested at the first
instance were also responsible for the storage of the contraband and all of
them are liable to be prosecuted for v.ario'.i.s offences under the Bengal
Excise Act 1909 (for short the 'Act').
they proposed to launch prosecution against those persons they realised that
there were two hurdles to be.
First is. Section 92 of the Act contains a rider that institution of the
prosecution was to be made after the expiry of six months from the date of
commission of offence, only with the sanction of the State Government.
second wag that under Section 167(5) of the Code of Criminal Procedure (West
Bengal Amendment) an order of the Magistrate' was necessary for continuing the
investigation beyond six months from the date of arrest of the accused.
the said sub- section if investigation in a case triable by a magistrate as
summons case could not be concluded within six months from the date on which
the accused was arrested or made his appearance, the magistrate shall make an
order stopping . further investigation, into the offence and shall discharge
the accused unless the officer making the investigation satisfies the
magistrate that for special reasons and in the interest of justice continuation
of the investigation beyond the said period is necessary. This is a special
provision applicable only in the State .of West Bengal.
time the Excise Officers received the report from the Chemical Examiner the
period of six months got expired. Hence they adopted a twin measure - one,
seeking the order of the magistrate for continuing the investigation and the
other, seeking the State Government's order sanctioning prosecution.
the magistrate initially granted further time to complete investigation that
period too expired and the officers again approached the magistrate for further
extension which was granted. In the meanwhile, the respondents moved the
magistrate to discharge them from the said case on the ground that the State
failed to launch the prosecution within the period of six months from the date
of the alleged commission of offence. But the magistrate dismissed the petition
against which the respondents moved the High Court in revision. Learned Single
Judge of the High Court disposed of the said revision as per the impugned order
and all the proceedings against the respondents were quashed.
behalf of the respondents it was submitted before the High Court, inter aiia,
that as per the provisions of the Act the Magistrate had no authority to extend
the time of filing the Police Report and that steps should have been initiated
for securing sanction within the period of six months from the date of
occurrence. It appears that the learned Single Judge has upheld the said
argument which could be discerned from the following observations:
the background of the above submissions it appears that failure of the
prosecution to apply for sanction before the expiry of the period of six months
when it was unable to file the prosecution report within six months and its
failure to produce the sanction order as yet and its further - failure to file
the prosecution report by now have entitled the accused persons to be
discharged and the proceedings quashed." Learned Judge further observed
that "where the prosecution intends to file the prosecution report beyond
the prescribed period of six months for initiation of proceedings with a view
to take cognisance by the Magistrate it must come with the sanction order
together with the prosecution report. In the instant case neither the
prosecution report has been filed before the Magistrate &s yet nor the
sanction order has been produced." The final operative portion in the
impugned judgment is "in the light of the above discussions the petition
1.3 allowed and the proceedings quashed.
Chandra Ray, learned senior counsel who argued for the appellant State has
submitted that when the High Court found that the prosecution report has not
been filed there was no scope for ordering quashment of the proceedings. There
is merit in the said contention that the High Court cannot quash something
which was non-existent.
is no necessity for quashing prosecution in anticipation or initiation of such
learned Single Judge has not correctly interpreted Section 92(1) of the Act.
The sub-section is extracted below:
Limitation of suits and prosecutions.- (1) No Civil Court shall try any suit
against the Government in respect of anything done or alleged to have been
done, in pursuance of this Act, and except with the previous sanction of the
State Government, no Magistrate shall take cognizance of any charge made
against any Excise Officer under this Act or any other law relating to the
excise revenue, or made against any other person under this Act, unless the
suit or prosecution is instituted within six months after the date of the .act
complained of." We need not bother ourselves iri this case about the
constraint imposed by the section on the civil courts which alone is covered by
first paragraph of the said provision.
power of criminal courts in taking cognizance of an, offence under the Act has
been circumscribed by the second paragraph of the section. Nevertheless a
reading of it makes the position clear that. there is no ban on the magistrate
against taking cognizance of the offence under the Act if one of the two
conditions is satisfied. If the prosecution has been. instituted within six
months of the act alleged there is no question of producing any sanction as the
magistrate would then be free to take cognizance under the Act. But if the
aforesaid six months period is over the court can still take cognizance of the
offence under the Act when the prosecution is instituted with the previous
sanction of the State Government. In other words the only requirement for
initiating prosecution proceedings against an offender after the expiry of the
period of six months from the date of the act alleged is that such institution
should be accompanied by the sanction granted by the State Government for such
to be noted that after the initial period of six months is lapsed no further
period of limitation is prescribed in the Act for instituting the prosecution
supported by the sanction. Of course such institution may be subject to the
other general provisions contained in the Coda of Criminal Procedure. The
reasoning adopted by the learned Single Judge that steps for obtaining sanction
.should have been adopted before the expiry of the first six months period has
no support in Section 92 or any other provision of the Act. However even the
necessity for obtaining sanction would arise only if the prosecution has not
been instituted till the expiry of the said period of six months.
is no scope for suggesting that the officer should have commenced proceedings
for securing sanction before the expiry of the said period of six months. If
papers are complete for launching the prosecution before the expiry of the said
period they can straight away approach the magistrate for initiating such
prosecution. Ho question of sanction would then arise. So the need for
obtaining sanction would arise only after the expiry of the said period of six
of the learned Single Judge should have been drawn to an earlier decision
rendered by a Division Bench of the Calcutta High Court in Superintendent and Remembrancer
of Legal Affairs, West Bengal vs. Mahendra Singh (1972 Criminal Law Journal
544). In the said case the situation was that the magistrate pasted an order
discharging the accused in a prosecution for certain offences under the Act on
the premise that no magistrate could take cognisance of the affence as the
initial period of six months had already expired. The Division Bench of the
High Court interfered with that order and observed thus:
bar therefore to the institution of the proceedings without a previous sanction
as enjoined under Section 92 of Bengal Act V of 1909 relates only to a
prosecution instituted after six months but if and when the same is instituted
within six months, no such sanction would be necessary. The emphasis therefore
put by the legislature is on a sanction on the expiry of six months and the
said provisions do not constitute ' any bar simpliciter as Mr. Das contended.
Therefore, the ratio of the learned Magistrate's order in this context are not
correct. The State Government can conform to the requirements of the statute on
expiry of six months by getting a sanction before the court takes cognizance.
It is, therefore, premature at this stage to hold that there has been a
statutory limitation and that Section 92 of the Bengal Act V of 1909 lends
assurance to the same." We have no doubt that the learned Single Judge had
missed the correct legal position laid down by the Division Bench in the
aforesaid decision. For all those reasons we allow this appeal and sot aside
the impugned judgment.
counsel for the respondents pleaded that the respondents may be allowed to
raise all other contentions regarding the maintainability of the prosecution.
It is needless to observe that it is open to the rspondents to raise whatever
contention they think proper for resisting the prosecution pitted against them.