K.R.Suraj
Vs. The Excise Inspector, Parappananqadi & ANR [2000] INSC 613 (4 December 2000)
S.S.M.quadru,
S.N.Phukan
L.I.T.J
SYED
SHAH MOHAMMED QUADRI, J.
Leave
to appeal is granted in all the special leave petitions.
These
appeals arise from judgments and orders of the High Court of Kerala at Ernakulam
in Crl.M.C.Nos.2409/97, 431, 435, 444 and 448/98, 502, 503, 504 and 506/97,
4000, 2158, 2159/97, 791/98 and 788/98, passed on May 19, 1998.
The
common question that arises for consideration in these appeals, is: whether the
impugned proceedings initiated against the appellants on the basis of samples
collected from their shops under Section 31 of the Kerala Abkari Act, 1077
(before its amendment in 1997) are liable to be quashed under Section 482 of
Code of Criminal Procedure. Briefly stated, the following facts give rise to
these appeals. In 1993, under Section 31 of the Kerala Abkari Act, 1077 (for
short, the Act), the Excise Inspectors of various ranges of Kerala State,
collected samples from the liquor shops of the appellants who were licensed to
carry on the business of liquor. The Excise Inspectors lodged complaints
against the appellants under various provisions, including Section 57A, of the
Act alleging, inter alia, that the samples show adulteration of liquor or
intoxicating drugs with noxious substance. The learned Magistrates took
cognizance of the offences. The appellants then moved the High Court by filing Crl.M.Cs.
to have the proceedings, initiated on the report of the Excise Inspector,
quashed under Section 482 of the Code of Criminal Procedure (for short, Cr.P.C.).
They were dismissed by the High Court on the date noted above.
It is
from those orders that the present appeals arise.
Mr.Mahendra
Anand, the learned Senior Advocate, appearing for the appellants in Criminal
Appeal Nosof 2000 [@ S.L.P. Nos.692-95/99 & 1708- 10/99], contended that on
the date the Excise Inspector collected the samples from the shops of the appellanats
under unamended Section 31 of the Act, he had no authority to do so in respect
of the offence under Section 57A of the Act, so no prosecution for the said
offence can be launched against them based on such collection of material. Mr.Anand
has argued that if the last part of Section 31 is to be interpreted as authorising
search for offences not mentioned in the first part then specifying offences in
the first part will become redundant.
His
further contention is that the first part contains offences which are triable
by a Magistrate whereas the offence under Section 57A is triable by a Court of
Session for which no machinery was provided on its insertion in the Act till
1997 when Section 31 was amended, Section 50 of the Act was substituted and
Section 50A was inserted to provide for trial of offence under Section 57A. As
such before 1997 collection of samples under Section 31 and booking of cases
for violation of Section 57A, not being within the contemplation of the Act,
was illegal. The proceedings are, therefore, liable to be quashed. After
insertion of Section 50A, if the offence under Section 57A, alleged to have
been committed in 1993, is permitted to be tried now, it would amount to giving
retrospective effect to Section 50A which, in the absence of any specific provision,
will be impermissible. Mr.Sukumaran, the learned senior counsel appearing for
the appellants in Criminal Appeal Nosof 2000 [@ S.L.P. Nos.3312-15/98, 1536/99
& 153799] canvassed for the plea that collection of samples under Section
31 for prosecution under Section 57A was illegal. He invited our attention to
Sections 63, 64 and 67 of the Act to urge that under the scheme of the Act
before amendment of 1997, offences under the Abkari Act were minor offence triable
by a Magistrate for which maximum punishment prescribed was less than two years
and they were also compoundable; but an offence under Section 57A is a grave
offence triable by Court of Session. He contended that a search qua offence
Section 57A was different from a search qua any of the offences mentioned in
the first part of Section 31 and, therefore, on the material collected during
the search in respect of the said offences, no prosecution for violation of
Section 57A can be launched. He submitted that amendments of some provisions
including Sections 30 and 31 and insertions of some other provisions in the Act
were purposive amendments to enable the Excise Officer to make search for all
the offences and to provide machinery for trial of all the offences in the Act
and they could not be treated as mere declaratory amendments. The learned
counsel appearing for the appellants in other appeals adopted their arguments. Mr.Mukul
Rohtagi, the learned Additional Solicitor General, contended that the last part
of unamended Section 31 was not controlled by the first part of that section
and that on the basis of collection of samples prosecution was properly
initiated against the appellants who could raise all questions relating to
absence of machinery, retrospectivity of Section 50A and other related aspects
before the Trial Court and the High Court rightly declined to quash the
proceedings. While adopting the arguments of the learned Additional Solicitor
General, Mr.Rajiv Mehta, learned counsel appearing for the State of Kerala, added that Section 57A was
inserted in the Act in 1984, and the offence was committed in 1993, therefore,
the appellants were liable to be prosecuted for the said offence. On these
submissions we shall ascertain the true position in the light of the relevant
provisions of the Act.
Sections
30 and 31 of the Act dealing with search and arrest as on the material date,
read as under : 30. Magistrate may issue a search warrant on application: - The
Commissioner of Excise or any Magistrate, upon information obtained and after
such enquiry as he thinks necessary, has reason to believe that an offence
under Section 55 or Section 57 or Section 58 of this Act has been committed, he
may issue a warrant for the search for any liquor, intoxicating drug,
materials, stills, utensil, implement or apparatus in respect of which the
alleged offence has been committed.
Before
issuing such warrant, the Commissioner of Excise, or Magistrate shall examine
the informant on oath of affirmation, and the examination shall be reduced into
writing in a summary manner and be signed by the informant and also by the
Commissioner of Excise or Magistrate.
31.
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 ranks 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 58B 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.
Provided
that every person arrested under this section shall be admitted to bail by such
officer as aforesaid if sufficient bail be tendered for his appearance either
before a Magistrate or before an Abkari Inspector as the case may be From a
perusal of the provisions, extracted above, it is clear that under Section 30
of the Act the Commissioner of Excise or any Magistrate was empowered to issue
a warrant for the search of any liquor, intoxicating drug, materials, stills,
utensil, implement or apparatus in respect of which he had, upon information
obtained and after such enquiry as he might deem necessary, reason to believe
that an offence under Sections 55, 57 or 58 of the Act had been committed.
Section
31 authorised the Excise Commissioner or any of the officers specified therein
including the Excise Inspector to search the houses without warrant, at any
time by day or by night, when he had reason to believe that (a) an offence
under Section 8 or Section 15C or Section 55 or Section 58B or Section 56A or
Section 57 or Section 58 or Section 58A or Section 58B of the Act, had been
committed and (b) the delay occasioned by obtaining a search warrant under
Section 30 would prevent the execution thereof. In such a case, after recording
his reasons and the grounds of his belief, he was enabled to enter and search,
at any time by day or night, any place and seize anything found therein which
he had reason to believe to be liable to confiscation under the Act, and to
detain and search and, if he thought proper, to arrest any person found in such
place whom he had reason to believe to be guilty of any offence under the Act.
Whereas in Section 30 there was no mention of seizure of any material or arrest
of any person, Section 31 specifically provided for seizure of anything liable
to confiscation under the Act and detention and search as also arrest of any
person found in the place of search whom the officer had reason to believe to
be guilty of any offence under the Act.
It may
be pointed out here that though the power of search under Section 31 of the Act
was available in respect of an offence for which warrant could be obtained
under Section 30 of the Act yet it appears that before incorporation of the
amendments in the Act in 1997, issuance of warrant of search was confined to
offences under Sections 55, 57 and 58 whereas under Section 31 search could
have been made in respect of any of the offences under Sections 8, 15C, 55,
55B, 56A, 57, 58, 58A or 58B of the Act. Such a situation arose because when
Sections 8, 15C, 55B, 56A, 58A and 58B were inserted in Section 31 in 1967, the
legislature did not amend Section 30 correspondingly. In the same way when
Section 57A was inserted in the Act in 1984, Section 31 continued to remain unamended.
Be that as it may, a close reading of Section 31 discloses that it had three
limbs.
The
first limb specified the officers who should have reason to believe that an
offence under any of the provisions enumerated therein had been committed; the
second authorised any of the specified officers to enter any place and search
without a search warrant under Section 30, at any time by day or night, if in
the opinion of any of them the delay occasioned by obtaining such warrant would
prevent the execution thereof and he had recorded the reasons and grounds of
his belief and the third enabled him to seize anything found in the place of
search which he had reason to believe to be liable to confiscation under the
Act and to detain and search and if he thought proper to arrest any person
found in such place whom he had reason to believe to be guilty of any offence
under the Act. In the absence of a warrant of search, for entering any place
what is necessary is existence of reason for any of the specified officers to
believe that any of the offences mentioned therein has been committed. Once an
officer gains entry in any place he can exercise any of the powers authorised
in the third limb which are not confined to offences specified in the first
limb. It is too banal a contention to merit acceptance that having seized an
article liable to confiscation under the Act or having detained and searched a
person found in such place who is believed to be guilty of an offence under the
Act, no person can be prosecuted in respect thereof for an offence under the
Act except for the offences mentioned in the first limb of Section 31. It is
true in Roy V.D. vs.
State
of Kerala [Criminal Appeal No.967 of 2000 @ SLP (Crl.) No.2705 of 1998 decided
on November 10, 2000], we have observed that the life and liberty of an
individual is so sacrosanct that cannot be allowed to be interfered with except
under the authority of law. That is because under our Constitution there is no protection
against search and seizure as is the case under the fourth and the fifth
amendment to the U.S.Constitution. In M.P.Sharma vs.
Satish
Chandra, District Magistrate, Delhi &
Ors. [1954 SCR 1077 at 1096], a Constitution Bench of this Court observed thus
: A power of search seizure is in any system of jurisprudence an overriding
power of the State for the protection of social security and that power is
necessarily regulated by law. When the Constitution makers have thought fit not
to subject such regulation to constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American Fourth Amendment, we
have no justification to import it, into a totally different fundamental right,
by some process of strained construction.
Nor is
it legitimate to assume that the constitutional protection under Article 20(3)
would be defeated by the statutory provisions for searches.
In
1984, as noted above, a new offence was created under Section 57A which is in
the following terms :
Whoever
possess any liquor or intoxicating drugs in which any substance referred to in
sub-section (1) is mixed, knowing that such substance is mixed with such liquor
or intoxicating drug shall on conviction be punishable with imprisonment for a
term which shall not be less than one year but which may extend to ten years
and with life which may extend to twenty five thousand rupees.
We
find no force in the contention that on and after insertion of Section 57A, no
person could have been prosecuted thereunder due to absence of machinery under
the Act as neither Section 31 authorised collections of samples nor Section 50
which dealt with offences triable by a Magistrate could have been pressed into
service because offence under Section 57A is triable by a Court of Session.
It is
too plain to overlook that this Section was in force when samples were
collected in 1993. We have held above that under unamended Section 31, on the
basis of the samples collected from the shops of the appellants, the Excise
Inspector could file report before the concerned Magistrate.
It is
true that Section 50 postulates trial by the Magistrate. But it must be borne
in mind that Section 50 enjoins that upon receipt of a report from Excise
Inspector the Magistrate shall inquire into such offence and try the person
accused thereof in like manner as if complaint had been made before him as
prescribed in the Cr.P.C. On the report of the Excise Inspector in respect of
the offence under Section 57A, the concerned Magistrate has to inquire into
offence and commit the appellants to the Court of Session. On June 3, 1997, Sections 31 and 50 were amended
and Section 50A was inserted in the Act, Section 31 as amended in 1997 is
extracted hereunder : 31. 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 ranks 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 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.
From a
compassion of unamended Section 31 and the amended Section 31, it is clear that
under the unamended provision the power to enter and search any place, at any
time by day or night, was confined to a case where any of the specified
officers including the Excise Inspector had reason to believe that any of the
following offences had been committed - viz., Sections 8, 15C, 55, 58B, 56A,
57, 58, 58A and 58B which obviously did not include Section 57A.
In any
given case, whether the Excise Inspector had reason to believe that an offence
was committed and that offence was one of the specified offences, are questions
of facts which must be established in each case on evidence. Should the prosecution
fail to prove these facts, the entry and search of any place per se would be
illegal and so also the collection of samples by him and consequently the
prosecution of the alleged offender will equally be illegal.
But
under the amended provision such a power extends to every case where the Excise
Inspector has reason to believe that an offence under the Act has been
committed. Even so on a valid entry and search of any place in exercise of
power under unamended Section 31 of the Act, should an Excise Inspector find
material suggestive of commission of an offence under the Act in addition to or
instead of the specified offences, he can, on the basis of such material file a
complaint/a report regarding commission of such an offence also in addition to or
in lieu of the offences in respect of which search was made. It is, however,
significant to note that under both the unamended provision as well as the
amended provision of Section 31 conditions for exercising the powers of seizure
and arrest remain unchanged -- the power to seize anything found therein is
conditioned upon the specified officer including the inspector having reason to
believe that it is liable to be confiscated under the Act. So also the power to
arrest any person found in such place is conditional on his having reason to
believe such person to be guilty of any offence under the Act. Thus, it is
clear that the last limb of Section 31 was not controlled by the first limb of
that section both before and after amendment of Section 31 of the Act. We have
already referred to the substance of the unamended Section 50. The amended
provision of Section 50 requires the Abkari Officer to forward to the concerned
Magistrate a report as provided in Section 173(2) of Cr.P.C.
on
completing the investigation into the offence. Section 50A provides that the
Magistrate shall inquire into such offence and commit to Court of Session if
the offence is exclusively triable by a Court of Session or try the person
accused thereof as if a case is instituted upon a police report as provided in Cr.P.C.
The above examination of the relevant provisions demonstrates that before
amendment of the aforesaid provision in 1997, the position was much the same
except to the extent indicated above. The amendment of Sections 31 and 50 and
insertion of Section 50A has not changed the law but has placed the matter
beyond controversy. In this view of the matter the contentions that the offence
under Section 57A could not have been tried before June 1997 for want of
machinery under the Act and allowing the trial to proceed after the said date
would amount to giving retrospective effect to Section 50A in the absence of
specific provision to that effect, have to fail as being untenable. It is thus
clear that, in the instant cases, on the basis of the samples of arrack
collected while carrying out search under unamended Section 31, prosecution
under Section 57A was rightly initiated by the Excise Inspector. Whether any
ground in law existed to enter the shops and collect samples has to be established
by the prosecution. In Roy V.D.s case (supra), the question we had considered,
was: the effect of search and seizure conducted by an officer not empowered
under the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, the
judgment in that case is of little assistance to the appellant as in these
cases the point is different. From the above discussion, it follows that the
question whether collection of samples of arrack by the Excise Inspector in
these cases under unamended Section 31 was not unauthorised and was legal has
to be established at the trial of the offence, therefore, it cannot be said
that the High Court committed any illegality in not quashing the proceedings
initiated in respect of the offence under Section 57A on the report of the
Excise Inspector. The appeals are, accordingly, dismissed. Crl.A. No. .. of
2000[@ of S.L.P. (Crl.) NO.538/2000] This appeal is from the order of the Kerala
High Court in Crl. M.C. No.497/2000 dated January 28, 2000 dismissing the said
Criminal Miscellaneous Case following the order passed by the High Court
impugned in the aforesaid appeals. It was contended that this appeal is
different from the afore-mentioned appeals inasmuch as in the charge-sheet
against the appellant only Sections 57A and 56(b) of Abkari Act, 1077 are
mentioned which are not among the provisions specified in the first limb of
Section 31, therefore, the appeal has to be allowed. We are afraid, we cannot
accede to the contention of the learned counsel. We have already held above
that to authorise entry in and search of any place what is required to be shown
is that the Excise Inspector had reason to believe that an offence under one of
the Sections mentioned in the first limb of unamended Section 31 was committed
to justify entry into the shops of the appellant, if on a valid entry samples
were collected which indicate commission of any other offence in addition to or
in lieu of the said specified offence, the Excise Inspector can file a report
before the Magistrate in respect of the said offence. The prosecution has to
make out a case under the first limb of Section 31, which can be determined
only on examination of the Excise Inspector and decided on trial. In such a
case if the proceedings are not quashed under Section 482 of the Code of
Criminal Procedure by the High Court, it cannot be said that the High Court has
committed any error in law. This appeal is also dismissed.
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