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PETITIONER: STATE OF WEST BENGAL .

       Vs.

RESPONDENT: RASHMOY DAS AND ORS

DATE OF JUDGMENT:       01/12/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

THOMAS, J.

Leave granted.

     The  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  quashment. State of West Bengal has therefore challenged the said order of the High Court in this appeal by special leave.

     The  facts  which  appellant has set up  against  the. respondents  which  led  to  the  aforesaid  order  are  the following:

     A  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’).

     As  they proposed to launch prosecution against  those persons  they  realised that there were two hurdles  to  be. circumvented.   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. The  second  wag  that under Section 167(5) of the  Code  of Criminal  Procedure (West Bengal Amendment) an order of  the

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Magistrate’  was necessary for continuing the  investigation beyond  six  months from the date of arrest of the  accused. As  per  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.

     By  the  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.

     Though  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.

     On  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:

     "In 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.

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     Shri  Tapas  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. There   is   no  necessity   for  quashing  prosecution   in anticipation  or initiation of such prosecution proceedings. Further  learned Single Judge has not correctly  interpreted Section  92(1)  of  the Act.  The sub-section  is  extracted below:

     "92.   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. The  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 institution.

     It  has  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. Hence  fchere  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

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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 months.

     Attention 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:

     "The   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.

     Learned  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.