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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

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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

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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

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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.

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     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

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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

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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.