P L D 1962 (W (PLP)

In view of section 5 (2) of the Criminal Procedure Code read with 35 Criminal Law Journal, page 129, 43 Criminal Law Journal, page 304 and 24 Criminal Law Journal page 335, I hold that regular police has no power to charge‑sheet the accused Kadir Shah under the Abkari Act. Consequently I discharge the above said accused."

2. Section 6 of the Bombay Abkari Act No. V of 1878 reads as under:‑ "To aid the Collectors in carrying out the provisions of this Act, the Provincial Government may, appoint such subordinate officers, with such designations, and assign to them respectively such powers and duties under this Act, as it deems fit. The Provincial Government, or, subject to such orders as aforesaid the Commissioners may invest any servant of the Crown in any Department either personally or in right of his office, or any other person, with such powers, and impose upon him such duties, under this Act as they deem fit, and any such officer shall thereupon exercise the said powers and discharge the said duties in addition to the powers and duties incident to his principal office Provided that powers under sections 36 and 40, clause (b), shall in no case be conferred on any officer of any department who is not superior in rank to a peon, or constable, and that any assignment of, or investment with, powers or duties made under this section may at any time be cancelled or varied by the authority which made it." In view of the above section under Notification No. C‑156 (a) dated the 5th January 1922, Government of Bombay invested al) police officers of and above the rank of Head Constable powers under sections 36 and 37 of the Bombay Abkari Act, V of 1878, vide Bombay Government Gazette Part I, 1922, pages 26 and

27. On the 7th February 1927, powers under section 41 were also conferred upon the police officers by Government Notification, of Revenue Department, No. 304. ‑C dated the 7thFebruary 1925 vide Bombay Government Gazette, 1925, Part I, Volume I page

430. The learned counsel for the accused Kadir Shah, therefore, conceded before me that the police had the power to investigate all the offences punishable under the Bombay Abkari Act V of 1878. It was however contended by the learned counsel for the accused that the police could not challan an accused person arrested by them or from whom seizure had been made by the police officer, in view of the provision of section 41‑A. Section 41‑A reads as under: "Every person arrested and thing seized under section 36, 37 or 41 shall, unless the arrest or seizure has been made by an Abkari Officer exercising powers under section 41, be forwarded without delay to the nearest Abkari Officer exercising such powers, or, if there be no such officer within a reasonable distance, to the officer in charge of the nearest police station."

3. The learned Public Prosecutor, Mr. Nasiruddin, however, contended that power to investigate offences included power to send up a report under section 173, Cr. P. C. He further relied on the word Abkari‑Officer given in section 3 (2) where "Abkari‑Officer" means a Commissioner, Collector or any officer or other person lawfully appointed, or invested with powers under section

6. Mr. Nasiruddin, therefore, argued that a police officer having been invested with powers under section 6 is an Abkari‑Officer within the meaning of section 41 (a) and, therefore, such police officer could send up a challan. I do note agree with Mr. Nasiruddin's reasoning. It would make the provision of section 41 (a) redundant or inconsistent with section

41. On the interpretation suggested by Mr. Nasiruddin there will be no occasion for section 41 (a) to be exercised at all in cases where the arrest or seizure has been made by an officer, acting under powers under section

6. Section 41‑A is also not meant for an Abkari Officer who has been appointed as such under section 6 and belongs to the Abkari Department. The provisions of Statute have to be so interpreted as to give meaning and effect to the provisions and make them consistent with the scheme of the Act. Section 41 (c) requires the articles seized by an Abkari Officer acting under section 41 or received by him under section 41 (a) to forward the same to the Magistrate to whom the accused is forwarded after sub inquiry is may be necessary. This shows that it is tie Abkari staff, who, having technical knowledge are to finally determine whether the article seized is of the nature covered by the provisions of the Abkari Act or not. I am, therefore, of the clear view that a police officer exercising powers under section 6 of the Abkari Act may exercise the powers under sections 36, 37 and 41, bur he cannot challan an accused person, but has to follow the provisions of section 41 (a) after the arrest of an accused person or seizure of an article.

4. The rulings reported in 35 Criminal Law Journal, page 129, 24 Criminal Law Journal 335 and 43 Criminal Law Journal 301, relied upon by Mr. Bari have not discussed the powers given to police officers under section 6 of the Abkari Act.

5. On the above findings the order of "discharge" cannot be said to be without jurisdiction. As the point was not argued before me I give no opinion if Mr. Bari could cake cognizance under section 190 (a) & (c) of the offence against the accused. The only course left for the police is to follow the provisions of section 41 (a) of the Abkari Act. The reference is returned with the above remarks. S. B. Reference answered.