Provisions of Bengal Excise Act Issues Problems Subrata

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Provisions of Bengal Excise Act: Issues & Problems -- Subrata Biswas Additional Excise Commissioner,

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

BE Act cases: Issues & Problems v Courts are burdened with thousands of long

BE Act cases: Issues & Problems v Courts are burdened with thousands of long pending cases v Problems that plague the courts as regards Excise Cases—from detection to investigation to prosecution v Are there ways to save precious time? v Significance of Excise cases—Not always a matter of a few thousand rupees for the exchequer! v Need to dispose of alamats 2

B. E. Act: A ‘Special Act’ vis-à-vis ‘General Act’ v Definition of ‘Special Law’—Sec

B. E. Act: A ‘Special Act’ vis-à-vis ‘General Act’ v Definition of ‘Special Law’—Sec 42 of the IPC—Preamble to the BE Act —Purpose v Seventh Schedule of the Constitution —Art 246—State List (Entry 51) 3

B. E. Act: Its ‘Speciality’ v Sec 5 of Cr. PC— ‘Special’ to a

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

B. E. Act: Its ‘Speciality’ v Initiation of investigation—Sec 156 of Cr. PC vis-à-vis

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

B. E. Act: Its ‘Speciality’ v Police Officer reports ‘seizure’ to the Magistrate u/s

B. E. Act: Its ‘Speciality’ v Police Officer reports ‘seizure’ to the Magistrate u/s 102 Cr. PC—Excise Officer reports to the Collector u/s 78(1) of BE Act v Collector decides custody of seized articles u/s 78(2) of BE Act during investigation. 6

B. E. Act: Its ‘Speciality’ v For a case booked by Excise Officer, Magistrate

B. E. Act: Its ‘Speciality’ v 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 Cr. LJ, 1709 (MP)] [Deb Kumar Adak vs. State of WB, 1992 C Cr. LR (Cal) 118 v Sec 167(5) of Cr. PC for Police Officer— vis-à-vis Sec 92 of BE Act for Excise Officer 7

B. E. Act: Its ‘Speciality’ v Police 173 Officer submits Charge-sheet u/s Cr. PC—Excise

B. E. Act: Its ‘Speciality’ v Police 173 Officer submits Charge-sheet u/s Cr. PC—Excise Officer submits Complaint u/s 74(4) of BE Act read with Sec 190 of Cr. PC. 8

Admissibility of statement before Excise Officer v Early pronouncements that Excise officials ARE police

Admissibility of statement before Excise Officer v 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] v 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 v Manufacture & sale from unlicensed premises—fiscal implications

BE Act: A few critical issues v 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 v Case Diary—its relevance & applicability —popular but erroneous interpretation of Sec 74(1)(a) of BE Act 10

B. E. Act: Its ‘Speciality’ v Sec 92 of BE Act for Excise Officer

B. E. Act: Its ‘Speciality’ v Sec 92 of BE Act for Excise Officer v Sec 74(4) of BE Act/Sec 190 of Cr. PC/Secs 2(d), 2(r) of Cr. PC v Report u/s 74(4) of BE Act—Police Report— Charge-sheet—prior examination of complainant/witnesses not required u/s 200 Cr. PC [Asst. Conservator of Forest vs. Fatimunnisa Begum, 1993 Cr. LJ 1291 AP] v Part A of Ch. XIX, Cr. PC applicable; no prejudice [Ashiq Miyan case AIR 1966 MP 1] 11

Saving precious time of the courts v Police may not routinely approach courts for

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

BE Act: A few critical issues v. Specialized knowledge and skills to be imparted

BE Act: A few critical issues v. 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] v. If felt necessary, Excise to impart required training to Police 13

BE Act: Issues in ‘Speedy Trial’ v More often than not, samples not sent

BE Act: Issues in ‘Speedy Trial’ v More often than not, samples not sent for analysis in Police cases—no CE report, no charge-framing—cases stockpile v 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) Cr. PC

BE Act: Issues in ‘Speedy Trial’ v Experts may not be ordinarily summoned —a

BE Act: Issues in ‘Speedy Trial’ v 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 Cr. LJ 1933] v Block of 2 or 3 dates 15

BE Act: Issues in ‘Speedy Trial’ v Not much scope within existing framework. v

BE Act: Issues in ‘Speedy Trial’ v Not much scope within existing framework. v No summary trials. v Lok Adalats without criminal jurisdiction [Gulzar Begum vs. Lok Adalat, Madras High Court, 24. 03. 2011] v How about plea bargaining? v How if examination of the complainant/witnesses before charge not be insisted upon? [Proviso (a) Sec 200, Cr. PC; [Asst. Conservator of Forest vs. Fathimunnisa Begum 1993 Cr. LJ 1291 (AP)] 16

BE Act: Issues in Jurisdiction v Sec 9 CPC—all civil suits triable except those

BE Act: Issues in Jurisdiction v Sec 9 CPC—all civil suits triable except those cognizance whereof stands barred, explicitly or implicitly v 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] 17

Dealing in liquor—Not a fundamental right v Nashirwar vs. State of MP AIR 1975

Dealing in liquor—Not a fundamental right v Nashirwar vs. State of MP AIR 1975 SC 360 v Har Sankar vs Dy. Taxation and Excise Commissioner, Punjab, AIR 1975 SC 1121 v State of MP vs Nandram Jaiswal, AIR 1987 SC 251 v Special policy—BE Act, a special law— special remedial mechanism 18

Remedy to special right beyond civil jurisdiction v Dhulabai & Ors vs State of

Remedy to special right beyond civil jurisdiction v Dhulabai & Ors vs State of MP [1968]3 SCR 662. v Kamala Mills Ltd. vs State of Bombay, [1966]1 S. C. R 64 v The Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke AIR 1975 SC 2238 v Secretary of State vs Mask & Co. (1940) 42 BOM L. R 767 19