Sat Pal Sharma vs Police Station
2023 Latest Caselaw 331 j&K

                                                                         Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                  CRMC No. 31/2016
                                                  IA No. 1/2016

                                                  Reserved on: 20.02.2023
                                                  Pronounced on:22.02.2023

Sat Pal Sharma                                                     .....Petitioner(s)

                                  Through :- Mr. V. Bhushan Gupta, Advocate


                         v/s

Police Station, Malhar Billawar District                         .....Respondent(s)
Kathua

                                  Through :- Mr. Dewakar Sharma, Dy AG


CORAM: HON'BLE MR. JUSTICE MA.CHOWDHARY, JUDGE

                                   JUDGMENT

1. Petitioner seeks quashment of charge-sheet No.1 of 2015 titled "State vs

Sat Pal & Anr.", pending disposal in the Court of learned Judicial

Magistrate Malhar Billawar, arising out of FIR No. 1/2015 registered at

Police Station Billawar, for the commission of offence punishable under

section 48-(a) Excise Act.

2. Learned counsel for the petitioner submits that at the behest of Sarpanch

Krishan Chand, the petitioner was implicated in false cases registered at

Police Station Malhar Billawar. He has further submitted that under the

Excise Act, the investigation of the case and the search cannot be made by

a police officer below the rank of Sub Inspector, whereas in the impugned

case, the police officer who conducted the search was not of the rank of

Sub Inspector but Assistant Sub Inspector, as such, the registration of the

case and the proceedings arising out of that resulting into the charge sheet

is a complete abuse of process of Court against the petitioner who is an

innocent person.

3. Respondent has filed reply to the petition asserting therein that 40 pouches

of liquor was recovered from the possession of the petitioner and his

brother Jia Lal which they had kept in a white colored plastic bag in their

kirayana shop (khokha) at Lower Baggan stream Desi Chaki (Gharat), as

such, they had committed the offence punishable under Section 48-(a)

Excise Act; that another case vide FIR No. 2/2020 was also registered

against them for the commission of offences punishable under sections

409/411 RPC and 3/7 E.C. Act on a written application of complainant

Krishan Chand Sarpanch.

4. As per charge sheet pending before the Court of learned Additional Special

Mobile Magistrate, Billawar, the case registered at Police Station Malhar

vide FIR No. 1/2015, after its investigation was concluded into a charge

sheet for the commission of offence punishable under section 48-(a) Excise

Act against the petitioner and his brother Jia Lal Sharma with the

accusation that on 11.01.2015 at about 12.30 PM, both of them were found

in illegal possession of Country liquor at their kirayana shop at their Gharat

(water mill) at Lower Baggan nallah which was recovered by a ASI Sita

Ram Sharma of Malhar Police Station, who had also investigated the case.

The contention of learned counsel for the petitioner is that the officer below

the rank of Sub Inspector was not competent to search the premises or to

conduct investigation of the case.

5. Section 27 of the Excise Act which is relevant, is extracted as under:

"27. Power to certain officers to search houses, etc. without warrant.

[When any Revenue Officer not below the rank of a Naib-Tehsildar or a Police Officer not below the rank of Sub-Inspector or any officer of the [Excise Department] not below the rank of Inspector in any locality to which this Act applies] has reasons to believe that an offence under this Act has been committed, and that if steps are taken to obtain a search warrant under the last preceding section, it is likely to go undetected, he may, after recording his reasons and the grounds of his belief, at any time by day or night, enter and search any place and may seize anything found therein, which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

6. On a consideration and perusal of the provisions contained under section

27 of the Excise Act, it is clear that no Revenue Officer below the rank of

Naib Tehsildar or a Police Officer not below the rank of Sub Inspector or

any officer of the Excise Department not below the rank of Inspector has

reasons to believe that an offence under this Act has been committed in

any locality to which the Excise Act applies and that if steps are taken to

obtain a search warrant under section 26, it is likely to go undetected, he

may, after recording his reasons and the grounds of belief, at any time by

day or night, enter and search any place and may seize anything found

therein, which he has reason to believe to be subjected to confiscation

under this Act and may enter and search the place and if he thinks proper

arrest any person found in such place whom he has reason to believe to be

guilty of any offence under this Act. Such officers are also authorized

under section 28 of the Act to enter and inspect places of manufacture and

sale of a licensed unit.

7. In view of the provisions of the Excise Act as detailed above, an Assistant

Sub Inspector is not competent for search and seizure under the Excise

Act, as he is below the rank of Sub Inspector, as provided under the Act.

Therefore, all the proceedings carried out by him including search, seizure,

arrest etc. are illegal and the prosecution of the petitioner on the basis of

charge sheet concluded by the investigation of the incompetent officer, is

an abuse of the process of Court. The prosecution of the petitioner under

such circumstances is liable to be quashed, invoking inherent jurisdiction

of this court.

8. For the forgoing reasons and the observations made hereinabove, the

petition is allowed and the charge sheet arising out of case registered vide

FIR No. 01/2015 at Police Station Malhar Billawar District Kathua, for the

commission of offence punishable under section 48-(a) of Excise Act, filed

before the Court below is quashed qua the petitioner. Copy of this

judgment be sent to the trial Court for compliance.

9. Petition along with pending application(s), is thus disposed of,

accordingly.

(M A Chowdhary) Judge JAMMU 22.02.2023 Vijay

Whether the order is speaking: Yes Whether the order is reportable: Yes