In Re : Perumalswamy and another

Krishnaswamy Reddy, J.—We do not think it necessary to state the facts for the moment as the only point raised for decision is whether a Magistrate has got jurisdiction to take cognizance of the case on a report forwarded by a Police Officer in respect of offences committed under the provisions of the Tamil Nadu Excise Act, 1971 (Tamil Nadu Act 34 of 1971) (hereinafter called ''the Act''). In these cases, the Magistrate took cognizance on the report of Police Officers. If this point is answered in the negative, the entire proceedings in these cases and similar other cases which are now said to be pending in the High Court would stand quashed. But on the contrary, if it is answered in the affirmative, these petitions and other similar petitions pending could be disposed of finally on the merits of each case.

It is necessary to note the relevant provisions of the Act. This Act came into force on 30th August 1971 repealing the Tamil Nadu Abkari Act, 1886 (Tamil Nadu Act 1 of 1886) and the Tamil Nadu Abkari Ordinance, 1971 (Tamil Nadu Ordinance No. 8 of 1971). This Act has been passed to consolidate and amend the law relating to the production, manufacture, possession, import, export, transport, purchase and sale of intoxicating liquor in the State of Tamil Nadu. While making provisions for Import, Export and Transport under Ch. 3, Manufacture, Possession and Sale under Ch. 4, Control and Regulation of Molasses under Ch. 5, levy of duties under Ch. 6, and Licences, etc. under Ch. 7, the Act has also made provision for the appointment of various officers for Establishment and control under Ch. 2, and their powers and duties are enumerated under Ch.9, and penalties for the various offences committed under the Act are provided under Ch. 10. We are now concerned with the prosecution in respect of the offences committed under the Acts.

Report of excise-inspector gives jurisdiction to a competent Magistrate--When an excise-inspector forwards in custody any person accused of an offence under this Act to the Magistrate having jurisdiction to try the case, or releases any such person on bail to appear before such Magistrate such officer shall also forward to such Magistrate a report setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which it may be necessary to produce before him. Upon receipt of such report 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 Code of Criminal Procedure, 1898 (Central Act V of 1898).

This Section empowers an Excise Inspector to submit a report, and on such offence and try the person accused thereof.

"Excise Inspector" is defined in Clause (8) of Section 2 of the Act, which is as follows: "Excise-inspector means an officer appointed under Clause (d) of Section 3."

u/s 3(d), the Government may appoint officers to perform the acts and duties mentioned in Sections 45 to 58 (both inclusive) of the Act.

It will be relevant to note that though the Excise Inspectors are appointed for the purpose of performing the acts and duties mentioned in Sections 45 to 48 u/s 3(d), u/s 3(f), the Government is empowered to order that all or any of the powers and duties assigned to any officers under Clauses (d) and (e) shall be exercised and performed by any other officer of the Government or any person.

Section 3(d) does not restrict the appointment of officers only to the excise-officers, the definition of which is found in Clause (9) of Section 2. Therefore, it appears that any person who is appointed under Clause (d) of Section 3 will be deemed to be an Excise Inspector for performing the acts and duties mentioned in Sections 45 to 58 it, therefore, becomes necessary to note whether any Police Officer has been appointed to perform the acts and duties mentioned in Sections 45 to 58 of the Act. After this Act was passed, no notification was made appointing Police Officers u/s 3(d) of the Act and perform the duties mentioned in Sections 45 to 58 of the Act excepting Section 49 and 58 of the Act. But, however, the following two Notifications Wire issued after that Act was passed:

EXCISE--TAMIL NADU EXCISE ACT, 1971--CERTAIN OFFICERS TO PERFORM FUNCTIONS UNDER Sections 36, 37, 39, 40, 44 AND 45 TO 58--NOTIFICATION ISSUED. G:O, Ms. No. 36, Excise and Prohibition, dated the 4th February 1972) (Published as notification in Part II--S. 1 at pages 229-232 of the Tamil Nadu Government Gazette, dated the 1st March, 1972)

NOTIFICATION: In exercise of the powers conferred by Clauses (d) and (e) of Section 3 of the Tamil Nadu Excise Act, 1971 (Tamil Nadu Act 31 of 1971), the Governor of Tamil Nadu hereby appoints, with effect on and from the 30th August 1971. The officers mentioned below to perform within their respective jurisdiction, the acts and duties mentioned in the sections specified thereof:

(1) Deputy Commissioners of Excise and Prohibition Department on duty within the State of Tamil Nadu to be excise officers under their denomination for the purposes of Sections 36, 37, 39, 40, 43 and 45 to 58 of the said Act and to exercise all the powers and discharge all the duties of the excise Officers under the said sections.

(2) Assistant Commissioners of excise-cum-Personal Assistants to the Collectors, Tahsildars, Deputy Tahsildars, Special Tahsildars for excise. Special Deputy Tahsildars for Excise and Special Revenue Inspectors of Excise within the State of Tamil Nadu to be Excise Officers under their respective denominations for the purposes of Sections 36, 37, 39, 40, 43 and 45 to 58 of the said Act and to exercise all the powers and discharge all the duties conferred and imposed on excise officers in the sections aforesaid;

Provided that with reference to Sections 36 and 39 there shall be no limit of jurisdiction within the State of Tamil Nadu for the excise and Revenue Officers named therein but all persons arrested and all seizures made thereunder shall without delay be made over to the officer possessing, local jurisdiction.

Under this Notification, the officers mentioned therein, namely, in Paras. 1 and 2 of the Notification, are empowered under the respective denominations to exercise the powers and discharge the duties in respect of the provisions contained in Sections 36, 37, 39, 40, 43 and 43to 58 of the Act. This notification has not included any Police Officer for the purpose of performing the functions in respect of the sections mentioned therein. This Notification has been made under Clauses (d) and (e) of Section 3 of the Act.

II

TAMIL NADU EXCISE ACT 1971--APPOINTMENT OF CERTAIN OFFICER

UNDER Section 3(e)-- NOTIFICATION--ISSUED. (G.O. Ms. No. 39, Excise and Prohibition, dated the 5th February, 1972). (Published as Notification II-1 No. 1136 of 1972 in Part II--Section 1 page 310 of the Tamil Nadu Government Gazette, dated the 15th March, 1972).

NOTIFICATION: In exercise of the powers conferred by Clause (e) of Section 3 of the Tamil Nadu Excise Act, 1971, (Tamil Nadu Act 34 of 1971), and in supersession of Notification No. 117 , dated the 20th March, 1924, published at pages 372-377 in Part 1 of Fort St., George Gazette, dated 1st April, 1924, the Governor of Tamil Nadu hereby appoints with effect on and from the 30ih August 1971, the officers of the Excise and Prohibition Department mentioned in column (1) of the table below to exercise the powers mentioned therein in respect of the area specified in the corresponding entry in the column (2) thereof:

THE TABLE

(1) Appointments

(2) Area to which applicable

(1) Deputy Commissioners of Excise within the State of Tamil Nadu to the Excise Officers under their denomination for the purpose of Sections 36, 37, 39, 40, 41, 42, 43, 44, 49, 58, 68, and 80 of the said Act and to exercise all the powers and discharge all the duties conferred and imposed on Excise Officers in the Sections aforesaid,

Throughout the State of Tamil Nadu.

(2) Assistant Commissioners of Excise, Tahsildars, Deputy Tahsildars and Special Tahsildars for Excise and Special Deputy Tahsildar, Excise and Special Revenue Inspectors of Excise and all Officers of the Police Department not lower in rank than that of the Sub Inspector of Police on duty to be Excise Officers under their respective denominations for the purposes of Sections 36, 37, 39, 40, 41, 42, 43, 44, 49, 58, 68 and 80 of the said Act and to exercise ail the powers and discharge all the duties conferred and imposed on excise officers in the Sections aforesaid:

Within their respective jurisdiction.

(3) Distillery Officers not lower in rank than that of a Deputy Tahsildar attached to distilleries, breweries and warehouses to be Excise Officers under their respective denominations for the purpose of Sections 36, 37, 39, 40, 41, 42, 43, 44, 49, 58, 68 and 80 of the said Act and to exercise all the powers and discharge all the duties conferred and imposed on Excise Officers in the sections aforesaid:

Within the respective area in which the distilleries, breweries or warehouses are located.

(4) Superintendent of Police, Inspectors of Police and Sub Inspectors of Police of the Excise Intelligence Bureau to be Excise Officers for the purpose of Sections 36, 37, 39, 40, 41, 42, 43, 44, 49, 58, 68 and 80 of the said Act and to exercise all the powers and discharge all the duties conferred and imposed on Excise Officers in the sections aforesaid:

Throughout the State of Tamil Nadu.

(5) Police Constables of the Police Department, Excise Guards and Last Grade Government Servant of the Revenue Department on duty to be Excise Officers under their respective denominations for the purpose of Sections 39, 41, 43, 44, 48, 68 and 80 of the said Act and to exercise all the powers and discharge all the duties conferred and imposed on excise Officers in the Sections aforesaid:

Throughout the State of Tamil Nadu in the case of Excise Guards of the Excise Intelligence Bureau and in other cases within their respective jurisdiction.

Provided that with reference to Sections 36 and 39 there shall be no limit of jurisdiction within the State of Tamil Nadu for the Police, Excise, Revenue and other Departmental Officers named therein but all persons arrested and all seizures made thereunder shall without delay be made over to the Officer possessing local jurisdiction.

N. ANANTHAPADMANBHAN, Special Secretary to Government.

This Notification is made under Clause (e) of Section 3 of the Act empowering the Officers mentioned in the Notification to exercise the powers in so far as and for purposes of Sections of the Act mentioned therein. In Para 4 of this Notification, the Police Officers mentioned therein were empowered to perform the functions of Excise Officers for the purposes of sections mentioned therein, which do not include Section 55 of the Act which is now under consideration by us. It is, therefore, clear from the two notifications referred to above, which were issued after the Act came into force, that the Police Officers were not empowered to perform the duties for the purpose of Section 55 of the Act. It is contended by the learned Advocate General appearing for the State that under the repealed Ordinance, a Notification was made empowering the Police Officers to exercise their powers even for purposes of forwarding a report to the nearest Magistrate for taking cognizance of the case, similar to the provisions contained in Section 55 of the Act and, therefore according to the learned Advocate General, that notification is saved by Section 85 of the Act. Before considering the scope of Section 85 of the Act, it will be convenient to note the said Notification made thereunder, which is as follows:

ABKARI-TAMIL NADU ABKARI ORDINANCE 1971--POLICE OFFICERS TO PERFORM FUNCTIONS UNDER SECTIONS 43 to 56--NOTIFICATION-ISSUED.;

(G.O. Ms. No. 70 Excise and Prohibition, dated the 30th September, 1971).

(Published as Notification II-1 No. 4507 of 1971 in Part II, Section 1 at page 914 of the Tamil Nadu Government Gazette, dated the 13th October 1971).

NOTIFICATION. In exercise of the powers conferred by Clause (d) of Section 3 of the Tamil Nadu Abkari Ordinance, 1971 (Tamil Nadu Ordinance 8 of 1971), The Governor of Tamil Nadu hereby appoints all Police Officers of and above the rank of Sub Inspector of Police to perform, within their respective jurisdiction the acts and duties mentioned in Sections 43 to 56 (both inclusive) of the said Ordinance.

N. ANANTAPADMANABHAN, Special Secretary to Government

Sections 43 to 56 mentioned in the said Notification correspond to Sections 45 to 58 of the Act which includes Section 55. It is clear from this Notification that the Police Officers of and above the rank of Sub-Inspector of Police could perform the acts and duties mentioned therein. This Notification was made on 30th September 1971. The Tamil Nadu Abkari Ordinance of 1971 came into force on 30th August 1971. The Act received the assent of the Governor on 9th November 1971 and was published in the Tamil Nadu Government Gazette Extraordinary, dated 10th November 1971 giving retrospective effect by virtue of Clause (3) of SI by deeming the Act to have come into force on 30th August 1971. If this Notification is saved by Section 85 of the Act, as contended by the learned Advocate General, the Police officers mentioned in the said notification would certainly have the powers to Act and perform the duties for purposes of Section 55 of the Act.

Section 85 of the Act is this:

Repeal of Tamil Nadu Ordinance 8 of 1971: (1) The Tamil Nadu Abkari Ordinance, 1971 (Tamil Nadu Ordinance 8 of 1971) is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance including any orders passed, notification issued rules and appointments made shall in so far as they are not inconsistent with this Act be deemed to have been done or taken under this Act and shall continue in force accordingly, unless and until superseded by anything done or any action taken under this Act.

The question that arises is whether the appointment made in the Notification made under the Ordinance is inconsistent with the provisions of this Act. If we can read anything from the provisions of the Act that it bars the appointments of Police Officers to exercise their powers for the purpose of Section 55 of the Act, such appointment made under the Notification and the Ordinance cannot be saved on the ground of inconsistency.

The learned Advocates appearing for the Petitioners in these cases contend that the object and the purpose of the Act is to exclude the Police Officers from performing their acts and duties for purposes of Section 55 of the Act, and to substantiate their contention, it is pointed out that it was only the Excise Officers who are given powers to compound the offences before the prosecution is launched and if the offences are compounded, the prosecutions are barred, and this power of compounding was not permitted to be exercised by the Police Officers.

Section 76 of the Act deals with the power to compound offences, which is as follows:

Power to compound offences (1) Any excise officer specially empowered in that behalf may accept from any person whose license or permit is liable to be cancelled or suspended under Clause (a) and (b) of Section 30 or who is reasonably suspected of having committed an offence under Sections 61, 63, 64, 66 or 71 a sum of money not exceeding two thousand rupees in lieu of such cancellation or suspension or by way of compensation for the offence which may have been committed, as the case may be; and in all cases whatsoever in which any property has been seized as liable to confiscation under this Act may release the same on payment of the value thereof as estimated by such officer.

(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the accused person, if in custody shall be discharged and the property seized shall be released, and no further proceeding shall be taken against such person or property.

It is clear from this provision that the officers who could compound the offences are not all the excise officers appointed under the Act, but only those officers who are specially empowered to act and perform their duties u/s 76. It therefore, cannot be said by virtue of this provision, the Police Officers are excluded from submitting a report to the Magistrate for taking cognizance. It is relevant to note that even the Ordinance, which is repealed by this Act, contained a provision similar to Section 76 of the Act, for compounding the offence and that Section has been re-drafted in this Act. It is clear that before the prosecution is launched either by the Excise Inspector or by anyone authorised to do so, the accused person can exercise his option of compounding the offences. If once it is compounded, the prosecution is barred; of course, there cannot be a bar for compromise even after the prosecution is instituted.

It is contended by the learned Advocates that if the Government really wanted to appoint police Officers for the purposes of Section 55, they could have made a Notification subsequent to the passing of the Act, and as they omitted to make such a Notification, it must be presumed that the Government did not want to appoint the Police Officers to avoid two agencies instituting prosecutions; and in other words, their contention is that the Notification made under the Ordinance has been superseded by the two Notifications made after the Act. We do not see any substance in this contention. The two Notifications made after the Act do not indicate that such Notifications were made in supersession of the Notifications made earlier either under the repealed Ordinance or under, the repealed earlier Acts.

G.O. Ms. No. 39, Excise and Prohibition, dated the 5th February, 1972 has been issued in exercise of the power conferred by Clause (e) of Section 3 of the Act, whereas the powers under Clause (d) of Section 3, which empowers the Government to appoints officers to perform the acts and duties mentioned in Sections 43 to 36 of the said Ordinance which correspond to Sections 45 to 58 of the Act. The earlier Notification made after the Act, though is made under Clauses (d) and (e) of Section 3 confines itself and restricts only to the Officers of the Excise Department. Therefore, the only Notification which empowers the Police Officers to perform the duties mentioned in Clause (d) of Section 3 is the Notification issued under the Ordinance. We do not find any inconsistency, repugnancy or incompatibility between the Notification issued under the Ordinance and the Notifications issued after the Act came into force. The test in such cases is not whether the Notifications issued after the Act keep the earlier Notification alive, but whether the later Notifications manifest an intention to destroy the earlier Notification. We are of the view that the Notification issued under the Ordinance which remains alive is not destroyed by the later notifications. The notification issued under the Ordinance can co-exist with the notifications issued after the Act and it may be even said that the later notifications have to be read with the notification issued under the Ordinance in addition to the said Notifications. As already pointed out by us, there is no indication at all of the supersession of the Notification issued under the Ordinance, either express or implied. G.O. Ms. No. 70, Excise and Prohibition, d. the 30th September, 1971, issued under the Ordinance appointing the Police Officers to exercise their powers are saved by virtue of Section 85 of the Act and such Officers appointed thereunder shall continue to perform and exercise their functions u/s 55 of the Act.

In the result, we answer the point raised, namely, whether the Magistrate has got jurisdiction to take cognisance on a report forwarded by a Police Officer in respect of offences committed under the Act, in the affirmative. The petitions will be disposed of in the normal course on merits. Ordered accordingly.