K. SREEDHAR RAO, J.

( 1 ) THIS petition filed challenging the registration of FIR in Cr. No. 97 of 2001 by the Inspector of Ashoknagar Police and continuation of investigation in the said case. The Assistant Commissioner of Police, Ulsoorgate sub-Division on 10-2-2001 made surprise check of the premises of e. T. Club, Residency Road, Bangalore and found that as many as 26 children ranging age group between 13 to 19 were being served with liquor. The petitioners 1, 4 and 2 are the accused who were said to be the Managing Committee Members of the Club and petitioners 3, 5 and 6 are the employees who said to have served the liquors to the children, contrary to the provisions of Sections 36 (l) (g) and 38-A of the Karnataka excise Act read with Rules 10 (1) (e) and 11 of the Karnataka Excise licences (General Conditions) Rules, 1967. Under the provisions of Section 36 (l) (g) of the Act shall on conviction be punished with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both.

( 2 ) THE provisions of Section 41 of the Excise Act reads thus:"41. Criminal liability of licensee for acts of servants. Where any offence under Section 32, Section 33, Section 34, Section 36 or Section 37 is committed by any person in the employ and acting on behalf of the holder of a licence or permit granted under this Act, such holder shall also be punishable as if he had committed himself the said offence, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence: provided that no person other than the actual offender shall be punishable under this section with imprisonment, except in default of payment of fine".

( 3 ) IN the said provisions the vicarious liability is fastened on the licence holder even if the employees have contravened any of the provisions of Sections 32, 33, 34, 36 and 37 of the Act. However, the licence holder can avoid the liability of punishment if he could show that he has no complicity with the act complained of and has taken due and reasonable precautions to prevent the commissions of such offences.

( 4 ) IT is the contention of the Counsel for the petitioner that by virtue of the provisions of Chapter II of the First Schedule of the Criminal procedure Code the measure of punishment indicated for the offence being less than 3 years. The offence being non-cognizable and as such the police have no power of investigation without the permission of the court under Section 155 of the Criminal Procedure Code. Therefore, the entire registration of the case and continuation of investigation is illegal and to be quashed.

( 5 ) THE State Public Prosecutor brought to the notice the provisions of section 52 of the Excise Act which reads thus:"52. Power to arrest without warrant to seize articles liable for confiscation and to make searches. (1) Any officer of the state Government (employed) in the Excise Department, or any officer of the Police or Revenue Department empowered by the state Government, in this behalf subject to such restrictions as may be prescribed, may (a) arrest without warrant any person [for] an offence punishable, under Section 32, Section 33, Section 34, Section 36 or section 37; (b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force, relating to excise revenue; and (c) detain and search any person upon whom, and any vessel, raft, vehicle, animal, package receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be. (2) When any person is accused or is reasonably suspected of committing an offence under this Act, other than an offence under section 32, Section 33, Section 34, Section 36 or Section 37 and on demand of any such officer as aforesaid, refuses to give his name and residence or gives a name and residence which such officer has

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