CASE NO.: Appeal (crl.) 1054 2000 PETITIONER: K.R.SURAJ Vs. RESPONDENT: THE EXCISE INSPECTOR, PARAPPANANQADI & ANR. .. . DATE OF JUDGMENT: 04/12/2000 BENCH: S.S.M.quadru, S.N.Phukan JUDGMENT:
L…..I………T…….T…….T…….T…….T…….T..J
J U D G M E N T
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.