TMI Blog2020 (5) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... the officials of Excise department inasmuch as investigation of an offence is the field exclusively reserved for the executive through the Police Department, the Superintendence over which vests in the State Government. The report to the learned CJM, Golaghat dated 10.01.2020, records the suspicion of the Excise official about the commission of an offence which he was empowered to investigate due to violation of route indicated in the passes issued by the officials of Arunachal Pradesh. Once such suspicion is recorded, the empowered Excise official is authorized to exercise the power conferred upon a police officer carrying out an investigation under Sections 160-171 of the Cr.P.C. The investigation envisaged in the Act 2000 is the one defined under Section 2(h) of the Code of Criminal Procedure 1973 which includes all the proceedings under the Code for the collection of evidence conducted by a police officer - the action of the Excise official or officials in breaking the digital lock of the consignments falls under Section 165 Cr.P.C. read with Sections 42 and 43 of the Act, 2000. Chapter IX of the Act, 2000 prescribes the penalties and procedure for the offences covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing Nos. (i) 59/RT/PMBW/IMFL/19-20, (ii) 60/RT/PMBW/IMFL/19-20 and (iii) 57/RT/PMBW/IMFL/19-20 in WP(C) No.9322/2019, (iv) 61/RAE/PMBW/IMFL/19-20, (v) 60/RAE/PMBW/IMFL/19-20 and (vi) 63/RAE/PMBW/IMFL/19-20 in WP(C) No.9338/2019, all dated 11.11.2019 issued by the Commissioner of Excise, Government of Nagaland, Dimapur, i.e. the respondent No. 5 to be exported by M/S United Brothers Distillers Pvt. Ltd. Naharlagun, Arunachal Pradesh under valid export permits bearing Nos. (i) Ex-Export/UBDPL/81/19-20, (ii) Ex-Export/UBDPL/82/19- 20 and (iii) Ex-Export/UBDPL/79/19-20 in WP(C) No. 9322/2019, (iv) Ex- Export/UBDPL/74/19-20, (v) Ex-Export/UBDPL/73/19-20 and (vi) Ex-Export/UBDPL/76/19-20 in WP(C) No.9338/2019 all dated 18.11.2019 issued by the Assistant Commissioner of Tax and Excise, Government of Arunachal Pradesh, Itanagar, i.e. the respondent No. 6. The IMFL consignments as per route in the excise passes issued by the concerned Officer-In- Charge at Arunachal Pradesh mentioned that the said consignments would be transported from Naharlagun, Arunachal Pradesh to Dimapur, Nagaland via State of Assam through Bandordewa, Tezpur and Golaghat. The consignments were digitally locked an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts broke open the digital locks without any authority. The consignments were exported under a valid license issued by the respondent No. 6 to be imported by the petitioners on the basis of valid permits issued by the respondent No. 5. The said transportation of the consignments were through Assam as per the defined route indicated by the respondent No. 6 in the excise passes and as such the process of export and import were not initiated nor completed within the territory and to the extent the Act of 2000 is applicable. 6. Referring to the affidavit-in-opposition of the respondent Nos. 1, 2 and 4 and the intimation cum report in the matter of detection of cases dated 27.11.2019 as forwarded by the respondent No. 4 to the respondent No. 2 it was mentioned that on physical verification and finding anomalies in the physical stock and the consignment, 6 (six) number of vehicles carrying IMFL consignments transported from Arunachal Pradesh to Nagaland, the Inspector of Excise, Golaghat detected and registered the said excise cases. But the report of detection annexed to the said letter shows that the detection was carried on 23.11.2019 and on the other hand in the letter as intima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said report it is the contention of Mr. Dey that the respondents more specifically the respondent No. 4 in order to make out a case tried to develop the same by sending offence reports one after another to the learned C.J.M. The offence report submitted before the learned C.J.M. at Golaghat on 01.02.2020 indicates unlawful transport, possession and sale of intoxicant IMFL but in order to attract the offences as per Sections 53 and 54 of the Act 2000, the same required to be proved which is not the case in hand. Admittedly the consignments were exported and imported beyond the territorial jurisdiction of the Act 2000 and none of the offences falls within the purview of the Act 2000 for which it is the contention of Mr. Dey that the exercise of the jurisdiction/authority by the Excise officials under the Act 2000 is itself wrong which requires setting aside and quashing of the proceedings. 9. Mr. Goswami, on the other hand, took the issue of maintainability of both the writ petitions on the ground that in each of the writ petitions, the individual petitioner sought for quashing of three separate Excise Cases which is not permitted. It is his submission that M/S United Bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Mr. Goswami submits that the Hon ble High Court should not interfere while the process for confiscation is on. In support of his contention he relied (1) Oma Ram Vs- State of Rajastha reported in 2008 (5) SCC 502, (2) State of Karnataka Vs- K. Krishnan reported in 2000 (7) SCC 80 and (3) Khoday Distilleries Ltd. and Others Vs- State of Karnataka and Others reported in (1995) 1 SCC 574. 11. Mr. Choudhury, the learned Additional Advocate General, Arunachal Pradesh submits that the export permit was issued by the Assistant Commissioner, Excise under Government of Arunachal Pradesh, and as per records, the export permits in question were issued after due approval of competent authority. As per the passes defining the route, the consignments were to enter Nagaland via Banderdewa, Tezpur and Golaghat and there was no violation of any provisions under the Act, 2000. Similarly, Ms. Kechi also submits that the import licenses were duly issued by the Government officials of the State of Nagaland through concerned department. Both the learned counsel confined their respective submissions to the extent of the genuineness and the validity of documents of the consignments only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project that the actions initiated by the Excise Officials are without jurisdiction. If the same is answered in the affirmative then in my considered opinion, the same would have a bearing upon the said orders of the learned Addl. C. J. M, Golaghat rendering the orders infructous as the jurisdiction assumed by the court below would be null and void. Accordingly while exercising the jurisdiction under Article 226 of the Constitution of India by this court it has ample power to interfere with the said orders on its own and as such I am unable to accept the submission of Mr. Goswami. 14. In order to examine the contention of Mr. Dey, it would be proper to look into the power and jurisdiction given to the Excise officials under the Act of 2000. Section 42 Sub- Section (2) of the Act, 2000 stipulates that any other Excise Officer leaving the Collector under the Act, 2000 when specially empowered to investigate by the State Government in respect of all or any specified class of offences punishable under the Act of 2000 may, without the order of the Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the executive through the Police Department, the Superintendence over which vests in the State Government as held by the Hon ble Supreme Court in State of Bihar and Anr Vs- J. A. C. Saldanna and Ors and R. P. Singh Vs- J. A. C. Saldanna and Ors reported in AIR 1980 SC 326. 17. In Khoday Distilleries Ltd and others Vs- State of Karnataka and others reported in (1995) 1SCC 574 the Apex Court held that potable liquour as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquour. Hence the trade or business in liquour can be completely prohibited. So considering the harmful effect of potable liquour the Government of Assam enacted the Assam Excise Act, 2000 which is a complete Code so far the field of crime detection and crime punishment is concerned relating to import, export, possession of intoxicating liquour and of intoxicating drugs. 18. Section 183 under Chapter XIII of the Criminal Procedure Code, 1973 prescribes offence committed on journey or voyage wherein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer. The Excise officials are clothed with the power of investigation under Section 160-171 of the Cr.P.C and as the said satisfaction to investigate with reasons was recorded, the concerned Excise official was authorized to seize after search being carried out under Section 165 of the Cr.P.C. Accordingly, the action of the Excise official or officials in breaking the digital lock of the consignments falls under Section 165 Cr.P.C. read with Sections 42 and 43 of the Act, 2000. Chapter IX of the Act, 2000 prescribes the penalties and procedure for the offences covered by it. For investigation the offences as mentioned in the report of Excise official requires no proof but a prima facie satisfaction is required and not beyond that. However, the grounds for suspecting the commission of an offence under the Act of 2000 must be recorded by the investigating Excise officer which in my considered opinion is recorded in the present case in hand as hereinabove stated and that is sufficient to go ahead with the process of investigation. 21. Merely, the consignments were exported from a State and imported to another one and there being no applicability in both the States of the Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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