Rajesh Bindal, J.@mdashThis order will dispose of a bunch of petitions, namely, Criminal Misc. Nos.56591 -M. 59325-M, 59327-M, 59967-M,
59969-M, 59971 -M, 59973-M, 59975-M, 59977-M, 59979-M, 65940-M, 72085-M, 74003-M. 78656-M and 78671-M of 2006 involving
identical question of law with similar facts. The facts are being noticed from Criminal Misc. No. 59327-M of 2006.
2. The challenge in the present petition is to the order dated 26.09.2005 passed by the learned Sub Divisional Judicial Magistrate. Samrala in
Criminal Case No. 182/2 arising out of FIR No. 72 dated 20.05.2005 registered at Police Station Machhiwara u/s 61/1/14 of the Punjab Excise
Act. 1914 (for short, ''the 1914 Act'').
3. The facts as stated in the petition are that FIR No. 72 was registered against the petitioner on 20.05.2005 under Sections 61 1/14 of the 1914
Act at Police Station Machhiwara with the allegation that 8 bottles of Desi Lal Kila liquor were recovered from the petitioner. The petitioner was
arrested and released on bail. Police after investigation presented challan before the learned Illaqa Magistrate. On 25.10.2005, charge u/s 61/1/14
of the 1914 Act was framed against the petitioner and the case was fixed for prosecution evidence on 03.08.2006. On this date, the learned Sub
Divisional Judicial Magistrate directed for the return of the challan to the Public Prosecutor in view of the amendment carried out in the 1914 Act
vide Punjab Act No. 10 of 2003. The petitioner/accused was directed to appear before the Assistant Excise and Taxation Commissioner,
Ludhiana (3) on 29.08.2006 for further proceedings. It is this order passed by the Court below which is being impugned in the present petition-
4. Assailing the order, Learned Counsel for the petitioner submitted that in the present case, the recovery was made by the police. The
investigation was also conducted by them and, thereafter, the challan was presented u/s 173 Cr.P.C. before the competent Court and the
prosecution of the petitioner started. Accordingly, now at this stage, the impugned order passed by the learned Court below directing the return of
challan and ordering the prosecution of the petitioner u/s 61-A of the 1914 Act is totally without jurisdiction. Prior to the amendment made vide
Punjab Act No. 10 of 2003, only the Courts could try the offences u/s 61 of the 1914 Act whereas after the amendment even the officers of the
Department of Excise and Taxation have also been con I erred the power. The power u/s 61 -A of the 1914 Act could be exercised if the
detention and a recovery of the liquor is by the excise officials and not where the recovery has been made by the police.
5. Learned Counsel for the State also could not raise any substantive argument to controvert the plea raised by Learned Counsel for the petitioner.
According to him, parallel powers have been conferred on both the authorities and in case the police authorities make the recovery of the liquor,
the challan is to be presented in the Court whereas in case the power is exercised by the officers of the Excise Department proceeding u/s 61 -A
of the 1914 Act would be competent. He referred to the provisions of Punjab Excise Powers and Appeal Orders, 1956 whereby the police
officers of the rank of Head Constable and superior in rank thereto have been given powers of an Excise Officer of the First Class. According to
him, in terms of this provision even a Head Constable and police officials above the rank of Head Constable could very well exercise the powers
of the Excise Officer and check violation of Section 61 or 61-A of the 1914 Act. It is further submitted that in the present case, Head Constable
Gurmail Singh of Police Station Machhiwala had recovered 8 bottles of liquor from the petitioner. Accordingly, the impugned order passed by the
learned Court below transferring the proceedings to the Assistant Excise and Taxation Commissioner is valid.
6. Before the respective contentions of the parties is considered, it would be relevant to refer to and consider import of relevant provisions of the
1914 Act and the amendments carried out therein from time to time. Section 61 of the 1914 Act as existing prior to the amendment made vide
Punjab Act No. 10 of 2003, after the amendment by Punjab Act No. 10 of 2003, till the amendment vide Punjab Act No. 10 of 2004 with effect
from 6.4.2004 and newly inserted Section 61 -A in the 1914 Act by Punjab Act No. 10 of 2003. with effect from 02.05.2003 and the further
substituted vide Punjab Act No. 10 of 2004 with effect from 06.04.2004 arc extracted below for reference:-
Section 61 of the 1914 Act as was existing prior to amendment by Punjab Act No. 10 of 2003
61. Penalty for unlawful import, export, transport, manufacture, possession etc.-(i) Whoever, in contravention of any section of this Act or of any
rule, notification issued or given thereunder or order made or of any license, permit or pass granted under this Act-
(a) imports, exports, transports, manufactures, collects, or possesses any intoxicant; or
(b) constructs or works any distillery or brewery; or
(c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any
intoxicant other than tari; shall be punishable for every such offence with imprisonment for a term which may extends to three years and with fine
upto twenty-five thousand rupees.
Provided that in the case of an offence relating to the possession of:
(i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five
thousand rupees;
(ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees;
(iii) country liquor manufacture otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles each bottle containing 750
Milliliters. such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees, and in a quantity
exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one
thousand rupees:
(iv) foreign liquor other than-
(a) manufactured in a licensed distillery or brewery in India; or
(b) imported into India on which custom duty is leviable under the Indian Tariff Act, 1934. or the Customs Act, 1962.
(c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.
(v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy
payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand
rupees.
(2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. - Whoever in contravention of any section other than Sections
29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act-
(a) sells any intoxicants ; or
(b) cultivates the hemp plant; or
(c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or
(d) bottles any liquor for the purposes of sale: or
(e) taps or draws tari form any tari producing tree, shall be punishable with imprisonment for a term which may extend to [two years and line which
may extend two thousand rupees].
Section 61 of (he 1914 Act as was existing after amendment by Punjab Act No. l0 of 2003
61. Penalty for offences triable by a court.-(1) Whoever in contravention of any section of this Act. or of any rule, notification issued or given
thereunder or order made. or of any license, permit or pass granted under this Act:-
(a) manufactures or collects any intoxicant; or
(aa) imports, exports, transports or possesses any intoxicant other than liquor; or
(b) constructs or works any distillery or brewery; or
(c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any
intoxicant other than tari. shall be punishable for every such offence with imprisonment for a term which may extend to three years and with line up
to twenty live thousand rupees Provided that in the case of an offence relating to the possession of .-
(i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than five
thousand rupees;
(ii) Lahan. such imprisonment shall not be less than six months and such line shall not be less than one thousand rupees;
(iii) country liquor manufactured otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles, each bottle containing 750
Milliliters. such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees; and in a quantity
exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one
thousand rupees;
(iv) foreign liquor other than-
(a) manufactured in a licensed distillery or brewery in India; or
(b) imported into Indian on which custom duty is leviable under the Indian Tariff Act 1934 or the Customs Act, 1962.
(c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.
(v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles on which the excise duty or any other levy
payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand
rupees.
(2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. - Whoever in contravention of any section other than Sections
29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act-
(a) sells any intoxicants ; or
(b) cultivates the hemp plant; or
(c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or
(d) bottles any liquor for the purposes of sale; or
(e) taps or draws tari form any tari producing tree, shall be punishable with imprisonment for a term which may extend to |two years and line which
may extend two thousand rupees].
Section 61-A of the 1914 Act as inserted vide Punjab Amendment Act No. 10 of 2003
61-A. Penalty for offences not triable by a Court:- (I) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any
notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor,
shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of
their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the
district and to the Deputy Excise and Taxation Commissioner, in-charge of the Division, within a period of twenty-four hours of such detention.
The Excise Officer shall forward such liquor and the means of transport alongwith the necessary documents to the Deputy Excise and Taxation
Commissioner in-charge of the Division.
(2) On the receipt of the report referred to in sub-Section (1), the Deputy Excise and Taxation Commissioner in-charge of the Division, shall
record the statements of the offender and the officers, concerned with the case, and release the offender.
(3) The Deputy Excise and Taxation Commissioner in-charge of the Division, may levy a penalty of rupees ten thousand after giving the offender a
reasonable opportunity of being heard, in case the liquor detained is licit, on which excise duty and other levies have been paid in the State of
Punjab.
(4) The Deputy Excise and Taxation Commissioner in-charge of the Division, may in addition to the confiscation of the liquor, levy a penalty of
rupees fifty thousand on the offender and the owner of the means of transport after giving them an opportunity of being heard, in case the liquor
detained is illicit and excise duty and other levies have not been paid thereon in the State of Punjab;
Provided that for every repeated offence, a penalty of rupees one lakh shall be imposed by the Deputy Excise and Taxation Commissioner in-
charge of the Division.
(5) If the penalty referred to in sub-section (4), is not paid within a period of one week from the dale of the order, then the Deputy Excise and
Taxation Commissioner in-charge of the Division shall pass a speaking order for confiscation of the means of transport and the liquor after giving
an opportunity of being heard to the offender and the owner of the means of transport. In case the owner of the liquor and the means of transport
arc not available, then the order for confiscation may be passed by the Deputy Excise and Taxation Commissioner in-charge of the Division by
affording an opportunity of being heard to the offender, who has been caught with the goods. The confiscated liquor shall thereafter, be destroyed
under the supervision of the Deputy Excise and Taxation Commissioner in-charge of the Division and an authenticated copy of the said order shall
be supplied to the affected person free of cost.
(6) The Deputy Excise and Taxation Commissioner in-charge of the Division, shall put to auction the confiscated means of transport within a
period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the
expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The un-recovered amount of penalty, if any, shall be
recoverable as arrears of land revenue.
Section 61 and 61-A of the 1914 Act as existing after amendment by Punjab Act No. 10 of 2004
61. Penalty for offences triable by a court (1) Whoever in the contravention of any section of this Act, or of any rule, notification issued or given
thereunder or order made, or of any license, permit or pass granted under this Act:-
(a) manufactures or collects any intoxicant; or
(aa) imports, exports, transports or possesses any intoxicant other than liquor; or
(b) constructs or works any distillery or brewery; or
(c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any
intoxicant other than tari. shall be punishable for every such offence with imprisonment for a term which may extends to three years and with fine
upto twenty live thousand rupees Provided that in the case of an offence relating to the possession of:-
(i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than live
thousand rupees;
(ii) Lahan, such imprisonment shall not be less than six months and such fine Shall not be less than one thousand rupees;
(iii) country liquor manufactured otherwise than in a licensed distillery in Punjab, in a quantity not exceeding ten bottles, ''each bottle containing 750
milliliters, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees; and in a quantity exceeding
ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees;
(iv) foreign liquor other than-
(a) manufactured in a licensed distillery or brewery in India; or
(b) imported into Indian on which custom duly is leviable under the Indian Tariff Act 1934 or the Customs Act, 1962.
(c) such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees.
(v) Matter (sic) excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and
such fine shall not be less than two thousand rupees.]
(2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc.- Whoever in contravention of any section other than Section
29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act-
(a) sells any intoxicants; or
(b) cultivates the hemp plant; or
(c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or
(d) bottles any liquor for the purposes of sale; or
(e) taps or draws tari from, any tari producing tree, shall be punishable with imprisonment for a term which may extend to [two years and fine
which may extend two thousand rupees],
61-A. Penalty for offences not triable by a Court:- (1) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any
notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor,
shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of
their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the
district within a period of twenty-four hours of such detention. The Excise Officer shall forward such liquor and the means of transport alongwith
the necessary documents to the Assistant Excise and Taxation Commissioner in-charge of the district.
(2) On the receipt of the report referred to in sub-section (I), the Assistant Excise and Taxation Commissioner in-charge of the district. shall record
the statements of the offender and the officers, concerned with the case, and release the offender.
(3) The Assistant Excise and Taxation Commissioner in-charge of the district, may impose the following penalties after providing the offender a
reasonable opportunity of being heard in case a liquor detained in licit, cm which the excise duty and other levies have been paid in the State of
Punjab, namely:-
(a) rupees five thousand in case of detection of such liquor upto two cases i.e. 18 bulk liters; and
(b) rupees ten thousand in case of detection of such liquor exceeding more than two cases i.e. 18 bulk liters.
(4) The Assistant Excise and Taxation Commissioner in-charge of the district, may confiscate the illicit liquor and may also impose the following
penalties after providing the offender a reasonable opportunity of being heard in case the liquor detained is illicit, on which the excise duty and
other levies have not been paid in the State of Punjab, namely:-
(a) rupees twenty live thousand in case of detection of such liquor up to live cases i.e. 45 bulk liters:
(b) rupees fifty thousand in case of detection of such liquor exceeding live cases i.e. 45 bulk liters, but not exceeding fifty cases i.e. 450 bulk liters;
and
(c) rupees on lakh in case of detection of such liquor exceeding fifty cases i.e. 450 bulk liters.
(5) If the penalty referred to in sub-section (4). is not paid within a period of one week from the date of the order, then. The Assistant Excise and
Taxation Commissioner in-charge of the district shall pass a speaking order for confiscation of the means of transport and the liquor after giving an
opportunity of being heard to the offender and the owner of the means of transport. In case the owner of the liquor and the means of transport are
not available, then the order for confiscation may be passed by the Assistant Excise and Taxation Commissioner in-charge of the district by
affording an opportunity of being heard to the offender, who has been caught with the goods. The confiscated liquor shall thereafter, be destroyed
under the supervision of the Assistant Excise and Taxation Commissioner in-charge of the district and an authenticated copy of the said order shall
be supplied to the affected person free of cost.
(6) The Assistant Excise and Taxation Commissioner in-charge of the district, shall put to auction the confiscated means of transport within a
period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the
expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The un-recovered amount of penalty, If any, shall be
recoverable as arrears of land revenue.
Section 61 of the 1914 Act, as was existing prior to the amendment vide Punjab Act No. 10 of 2003, provided for prosecution in all the cases of
illegal import, export, transport, manufacture, collection or possession of any intoxicants. An intoxicant, in term of definition thereof as contained in
Section 3(12a) of the 1914 Act includes liquor. The punishment provided is of imprisonment for different terms and fine.
After amendment carried out vide Punjab Act No. 10 of 2003 whereby Section 61 of the 1914 Act was amended and a new Section 61 -A was
added, the scheme of the 1914 Act had undergone a change After the amendment, a distinction was made with regard to the penalties for offences
triable by a Court and penalties for offences not triable by a Court. In terms of Section 61(1 )(aa) with effect from 02.05.2003. any import, export
transport or possession of any intoxicant other than liquor in contravention of any provision of the 1914 Act, rules! notification or order made
thereunder or of any licence, permit or pass granted under the Act was punishable with imprisonment for a term as prescribed. Whereas the newly
added Section 61A after the amendment carried out vide Punjab Act No. 10 of 2003, with effect from 02.05.2003. provided that whoever in
contravention of any provisions of the 1914 Act or rules or notification or order or any licence, permit or pass granted under the Act Inter-alia
imports, exports, transports or possess any liquor, shall along with liquor and means of transport be detained by an Excise Officer. The procedure
to be followed after its detention by the Excise Officer has further been provided in the Section.
The provisions of Section 6l-A of the 1914 Act further provide for levy of penalty for licit liquor on which excise duty and other levies have been
paid to the State Government and illicit liquor on which excise duty and other revenues have not been paid to the State Government. Though
provisions of Section 61-A of the 1914 Act were subsequently substituted by Punjab Act No. 10 of 2004 with effect from 06.04.2004, however,
the scope of this Section remained same as far as the issue under consideration in the present case is concerned, namely, (hat the section applied
inter alia for unauthorised import, export or transport of liquor. The change was that the powers earlier were conferred on Deputy Excise and
Taxation Commissioner which after the amendment were conferred on Assistant Excise and Taxation Commissioner. Certain changes were made
in the amount of penalty to be levied etc.
In view of the above discussion, it can safely be summed up that Section 61 of the 1914 Act is for the offences where (he power is to be exercised
by (he Court, whereas u/s 61A of (he 1914 Act, the authority is with Assistant Excise and Taxation Commissioner. There is no dispute that the
provisions of Section 61 of the 1914 Act are applicable for any intoxicant other than liquor whereas the provisions of Section 61 -A of the 1914
Act are applicable for liquor. In the present case admittedly recovery from all the petitioners is of liquor and that too after the amended provisions
of Section 61 and newly inserted provisions of Section 61A of the 1914 Act had come into force with effect from 02.05.2003.
As far as recovery of liquor from the petitioner by the police official is concerned, reference can be made to the provisions of Punjab Excise
Powers and Appeal Orders, 1956 conferring powers of Excise Officer on certain other officials. Clause 5 thereof is extracted below;-
5. u/s 10 of Punjab Excise Act there shall be three classes of Excise Officers to be designated I st Class. 2nd Class and 3rd Class respectively and
the persons mentioned in groups A, B and C below shall be respectively Excise Officers of the 1st, 2nd and 3rd Class.
Group Q
Excise Officers of the 3rd Class
6. The persons mentioned in groups A and B below are, under Sections 11 of the Punjab Excise Act, invested with the powers of an Excise
Officer of the 1st Class and 3rd Class respectively.
Group A
(To exercise the powers of an Excise Officer of the 1 st Class) (1) All police officers of the rank of Head Constable and any rank superior thereto.
A perusal of the above referred provision of the order shows that all police officials of the rank of Head Constable and superior thereto have been
permitted to exercise the powers of Excise Officer of the First Class. Section 61-A of the 1914 Act authorises an Excise Officer for detention or
checking of the illegal possession import, export or transport of liquor
As far as facts of the present ease are concerned, the allegations against the petitioner is regarding recovery of 8 bottles of Desi Lal Kila liquor
which as per the stand in the written statement was recovered by Head Constable Gurmail Singh, who in terms of the provisions of the order as
extracted above is authorized to exercise the powers as an Excise Officer. However, as is evident from the facts on record, for the alleged offence
committed by the petitioner under the 1914 Act. FIR was registered against him u/s 61/1/14 of the 1914 Act at Police Station Machhiwara though
in terms of provisions of Section 61-A of the Act. the alleged offence was required to be dealt with by the Deputy Excise and Taxation
Commissioner, in-charge of the district. As the FIR was registered, in furtherance thereto after investigation a challan was presented in the Court
where charges were framed against the petitioner. 1 However, when the import of Section 61 -A of the 1914 Act, as was inserted with effect from
02.05.2003. was brought to the notice of the Court, the learned Magistrate passed the following order:-
In view of the latest amendment in the Punjab Excise Act, 1914 by the Punjab Act 10 of 2003. the offences in question has been made triable by
the Asstt. Excise and Taxation Commissioner. Therefore, this challan is ordered to be returned back to the AIM5. The accused is directed to
appear before the AHTC. Ludhiana (3) on 59.08.2006 for further proceedings. The Ahmad is directed to comply with immediately and local
police is directed to present the challan before the said authority on date fixed. Judicial papers be consigned to the record room.
A perusal of the above extracted order passed by the learned Magistrate shows that considering the fact that in terms of amendment in the Act
vide Punjab Act No. 10 of 2003, the offence in question was triable by Assistant Excise and Taxation Commissioner, the challan presented in the
Court was directed to be returned to the Public Prosecutor and the petitioner was directed to appear before the authority concerned for further
proceedings.
If the facts of the present case are examined in the light of position of law as discussed above, it is clear that on the date when the liquor was
recovered by the Excise Officer, in terms of the provisions of Section 61A of the 1914 Act, the matter was to be adjudicated upon by the officers
in the Excise & Taxation Department and no challan was required to be presented in the Court. Once correct position of law was brought to the
notice of the learned Court below, in my opinion, the Court below has not committed any illegality in returning the challan back to the Public
Prosecutor as the Court did not have jurisdiction to deal with the matter. Merely because a direction has been given to the petitioner to appear
before the competent authority no prejudice has been caused to the petitioner as the matter will now be dealt with by the authority concerned in
accordance with law. Once the challan presented in the Court has itself been returned to the Public Prosecutor, the order framing charge against
the petitioner shall be considered as non-est, however, the same will not pre-judice the proceedings before the competent authority in any manner.
The situation which has emerged in the present case was avoidable. There are three organs of State, the legislature, the executive and the judiciary.
The legislature is to enact laws, the executive is to implement the same and the courts are to examine the laws and the actions of the executive. It is
evident from the facts of the present case that though amendment was carried out in the Punjab Excise Act, 1914 vide Punjab Act No, 10 of 2003
with effect from 02.05.2003 providing for different forums for different offences, however, the persons at the helm of affairs who had to implement
the Act in its true letter and spirit were not educated about the same which resulted in unnecessary delay in the prosecution of the case, as the
proceedings were launched at a wrong forum. It is desirable that whenever a new scheme of things come into operation with the amendment in the
Act or the rules, the persons who are concerned for implementation thereof should be educated about its requirements and the procedure to be
followed. This will result in avoiding unnecessary litigation or technical objections.
In view of my discussions above, the present petitions are dismissed. The petitioners are now directed to appear before the authority concerned on
April 24,2008 for further proceedings.
