Ch. Appanna vs State of Orissa

Ray, C.J.—The Petitioner (Ch. Appanna) has been convicted u/s 47(a) of the Bihar and Orissa Excise Act for having in possession and causing the sale of Government licensed liquor in a tati enclosure near the Jyoti Cinema in Berhampur town, and has been sentenced to pay a fine of Rs. 200/- and in default to undergo simple imprisonment for two months.

Appanna is admittedly a license holder for sale of liquor in shop No. 2 in Berhampur Town.

The contentions that are raised in this case are: (i) that even if he sold, as alleged by the prosecution, at the tali enclosure, he cannot be held to have committed an offence inasmuch as there was nothing in the license that it was confined to be availed of in any particular part of the town; (ii) that in view of Section 87 of the Act, initiation of the prosecution was bad in law inasmuch as cognisance had been taken on the complaint of the Excise Sub-Inspector who had not been authorised by the Collector within the meaning of the section; and (iii) in relation to sufficiency of the evidence add used and its proper appreciation and due appraisement by the Courts below.

The third contention should not be entertained as against the concurrent findings of the Courts below in revision.

With regard to the first contention, the prosecution should have done well to have produced the license showing that the particular premises, referred b in Section 30 of the Act were delimited in the license. Through Mr. Advocate-General, who was appearing for the State, I directed the production of the licence or its copy from the Berahampur Excise Department. Except a counterfoil which lacks all details in its particulars, nothing more could be produced. But Mr. Advocate-General has handed over to me a license granted to a retail-seller of the liquor in Cuttack. It appears from that the specification of the locality in which the retail sale is to take place has been duly incorporated and the same has been indicated by boundaries of the place. That specification of the place while granting a licence is a matter of condition and essentiality will appear from the statutory rules (Vol. IV, Part I, p. 1 of the Orissa Excise Manual). The part is headed "General condition applicable to vend licenses under the Excise Law", Paragraph 1 reads:

A licensee may sell an intoxicant only at the place or on premises specified in that behalf on the license and sale by him or on his behalf in any other place is absolutely prohibited.

I would, therefore, hold, agreeing with the Courts below, that the place in which the Petitioner was found selling the Government licensed liquor was not the place specified in his license and by doing so he did something which was absolutely prohibited. As to initiation, Section 87 says:

No Magistrate shall take cognizance of an offence referred to-

(a) in Section 47...except on the complaint or report of an Excise Officer or an Officer empowered in this behalf by the Local Government or-

(b) in Section 57...except on the complaint or report of the Collector or an Excise Officer authorised by the Collector in this behalf.

Mr. Rao, the learned Counsel for the Petitioner, forcibly contends that the offence charged is one within Section 57 of the Act and as such the complaint in the case must fulfil the requirements of Section 87(b). According to his contention, the offence is one u/s 57(b), which, omitting the immaterial portion thereof, would read:

If any holder of a license, in any case not provided for in Section 47, wilfully contravenes any rule made u/s 89 or Section 90 or

(c) wilfully does any act, in breach of any of the conditions of the licence, for which a penalty is not prescribed elsewhere in this Act, and c.

We had to read Section 47(a) under which the Petitioner has been prosecuted side by side. It reads:

If any person, in contravention of...licence...granted under this Act,...

(a). ...sells any intoxicant, he shall be liable to imprisonment...or to fine....

Cases covered by Section 47 are excluded from the purview of Section 87. The crucial position, therefore, is whether the offence in the present case is one u/s 47 or Section 57. Section 57 either (b) or (c) refers to such violation of rules or conditions of license as are not elsewhere provided for. This amounts to say that if the offence charged falls u/s 47(a), as quoted above, non-compliance of the provisions of Section 87, as contended for by the learned Counsel for the Petitioner, will not vitiate the prosecution. In my judgment, this case comes very clearly and specifically u/s 47(a) and as such does not come under the purview of Section 57. There is, therefore, no illegality in launching the prosecution. All the contention advanced by the learned Counsel having thus failed, the revision fails and is dismissed.