Provisions of Bengal Excise Act: Issues & Problems -- Subrata Biswas Additional Excise Commissioner, Govt of WB & Collector of Excise, Kolkata

BE Act cases: Issues & Problems Courts are burdened with thousands of long pending cases Problems that plague the courts as regards Excise Cases—from detection to investigation to prosecution Are there ways to save precious time? Significance of Excise cases—Not always a matter of a few thousand rupees for the exchequer! Need to dispose of alamats

B.E. Act: A ‘Special Act’ ‘Special Act’ vis-à-vis ‘General Act’ Definition of ‘Special Law’—Sec 42 of the IPC—Preamble to the BE Act—Purpose Seventh Schedule of the Constitution—Art 246—State List (Entry 51)

B.E. Act: Its ‘Speciality’ Sec 5 of CrPC— ‘Special’ to a certain extent— ‘General’ otherwise—CrPC to be applied accordingly BE Act offences—Are they ‘cognizable’?—Sec 2(C) of IPC—Sec 67 of the BE Act

B.E. Act: Its ‘Speciality’ Initiation of investigation—Sec 156 of CrPC vis-à-vis Sec 73 of BE Act—Both Police & Excise Officers empowered to detect (Sec 67 of BE Act) Excise Officers invested with investigating powers of Police Officers [Sec 74(1)(a) of BE Act]

B.E. Act: Its ‘Speciality’ Police Officer reports ‘seizure’ to the Magistrate u/s 102 CrPC—Excise Officer reports to the Collector u/s 78(1) of BE Act Collector decides custody of seized articles u/s 78(2) of BE Act during investigation.

B.E. Act: Its ‘Speciality’ For a case booked by Excise Officer, Magistrate not in the scenario till Sec 74(4) of BE Act is attracted—no orders by Magistrates thus ‘maintainable’—[Babulal Lodhi vs. State of MP, 1987 CrLJ, 1709 (MP)] [Deb Kumar Adak vs. State of WB, 1992 C CrLR (Cal) 118 Sec 167(5) of CrPC for Police Officer—vis-à-vis Sec 92 of BE Act for Excise Officer

B.E. Act: Its ‘Speciality’ Police Officer submits Charge-sheet u/s 173 CrPC—Excise Officer submits Complaint u/s 74(4) of BE Act read with Sec 190 of CrPC.

Admissibility of statement before Excise Officer Early pronouncements that Excise officials ARE police officers for Sec 25 of Evidence Act [Emperor vs.Dinshaw Driver (1928) 31 Bom LR 49; Ibrahim Ahmad vs. King Emperor (1931) 58 Cal 1260] But a few post-Independence pronouncements that Excise officials ARE’NT [Raja Ram vs. State of Bihar AIR 1964 SC 828; Badaku Joti vs. State of Mysore AIR 1966 SC 1746]

BE Act: A few critical issues Manufacture & sale from unlicensed premises—fiscal implications NOT the be-all-and-end-all—public health security much more critical—importance of investigation by IO--importance of JC Case Diary—its relevance & applicability —popular but erroneous interpretation of Sec 74(1)(a) of BE Act

B.E. Act: Its ‘Speciality’ Sec 92 of BE Act for Excise Officer Sec 74(4) of BE Act/Sec 190 of CrPC/Secs 2(d), 2(r) of CrPC Report u/s 74(4) of BE Act—Police Report—Charge-sheet—prior examination of complainant/witnesses not required u/s 200 CrPC [Asst.Conservator of Forest vs. Fatimunnisa Begum, 1993 CrLJ 1291 AP] Part A of Ch.XIX, CrPC applicable; no prejudice [Ashiq Miyan case AIR 1966 MP 1]

Saving precious time of the courts Police may not routinely approach courts for permission to hand over their Excise cases to Excise Department—Police competent to investigate u/s 156 CrPC r/w Sec 73 of BE Act & 773-EX dated 18th/21st July 1980 Police may justify why such ‘hand-over’ may be necessary [Mitesh vs. State; Gujrat High Court, CrAppl-1384 of 2007; (specialized agency)]

BE Act: A few critical issues Specialized knowledge and skills to be imparted to Police, if necessary—a la NDPS issues—[State vs. Gautam Singh; Addl Sessions Judge, Delhi; 12.09.08; FIR 19/08] If felt necessary, Excise to impart required training to Police

BE Act: Issues in ‘Speedy Trial’ More often than not, samples not sent for analysis in Police cases—no CE report, no charge-framing—cases stockpile Can the Magistrates ask questions for ensuring ‘speedy’ investigation?—for putting the IO on the right track—[Ms G.K.Gill vs. Central Govt;ADJ, Delhi;CR-32/2013]—power u/s 156(3) CrPC

BE Act: Issues in ‘Speedy Trial’ Experts may not be ordinarily summoned—a ploy by the Defence—only in case there is ground for ‘doubt’—[Ram Dayal vs. Municipal Corporation of Delhi, AIR 1970 SC 366][ Dasu vs. State of Maharashtra, 1985 CrLJ 1933] Block of 2 or 3 dates

BE Act: Issues in ‘Speedy Trial’ Not much scope within existing framework. No summary trials. Lok Adalats without criminal jurisdiction [Gulzar Begum vs. Lok Adalat, Madras High Court, 24.03.2011] How about plea bargaining? How if examination of the complainant/witnesses before charge not be insisted upon? [Proviso (a) Sec 200, CrPC; [Asst. Conservator of Forest vs. Fathimunnisa Begum 1993 CrLJ 1291 (AP)]

BE Act: Issues in Jurisdiction Sec 9 CPC—all civil suits triable except those cognizance whereof stands barred, explicitly or implicitly Licence settlement, a State policy—Art 47 of the Constitution—right neither natural, nor fundamental—[Cooverjee Bharucha vs. Excise Commissioner, Ajmer, A.I.R 1954 S.C 220]

Dealing in liquor—Not a fundamental right Nashirwar vs. State of MP AIR 1975 SC 360 Har Sankar vs Dy. Taxation and Excise Commissioner, Punjab, AIR 1975 SC 1121 State of MP vs Nandram Jaiswal, AIR 1987 SC 251 Special policy—BE Act, a special law—special remedial mechanism

Remedy to special right beyond civil jurisdiction Dhulabai & Ors vs State of MP [1968]3 SCR 662. Kamala Mills Ltd. vs State of Bombay, [1966]1 S.C.R 64 The Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke AIR 1975 SC 2238 Secretary of State vs Mask & Co. (1940) 42 BOM L.R 767