Section 173(4) of the Criminal Procedure Code is not applicable to investigations conducted by Excise Officers under the Bengal Excise Act.

( 1 ) THIS revisional application is directed against an order of Shri Amal Kumar Chatterjee, Presidency Magistrate, Calcutta, rejecting a prayer made by the accused petitioners for supplying copies of statements which may have been recorded by the Excise Officer in the course of the investigation of the case, which is one under Section 120b of the Indian Penal Code taken with Section 46 (a) of the Bengal Excise Act. The learned Magistrate observed that the investigation having been made under a special statute, namely, Bengal Excise Act, the statutory provisions of Section 173 (4) of the Criminal Procedure Code were not applicable and therefore the accused were not entitled to copies, as of right The learned Magistrate also considered whether he should use his discretion in directing that copies should be furnished, and referred to the decision in Natabar Jana v. State, where the question of supplying copies of statements of witnesses recorded by the police in a case where the investigation was not held under Chapter 14 of the Code, was considered. The learned Magistrate however did not consider it necessary to exercise his discretion in favour of the accused in view of the facts of the particular case.

( 2 ) MR. Ajit Kumar Dutt appearing for the petitioners has urged that in view of the provisions of Section 74 and particularly Section 74 (4) of the Bengal Excise Act 1909, an investigation by the Excise Officer must be deemed to be an investigation under Chapter 14 of the Code, and therefore the provisions of Section 173 (4) of the Criminal Procedure Code are attracted, and therefore the accused are entitled to be furnished with the copies of the statements which may have been recorded by the Excise Officer in the course of the investigation. There is a decision to the contrary by a Division Bench of this Court, namely, the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Basudeb Das, 66 Cal WN 1040. Guha Ray, J. , who delivered the judgment of the Bench held that in view of the terms of Section 74 of the Bengal Excise Act as it exists at present, the provisions of Section 173 (4) of the Code cannot be said to be applicable to a case investigated by an Excise Officer, and it is not open to the Magistrate to make an order directing the Excise Officer to make over to the accused before the commencement of the trial copies of the report in regard to the charge and of the first information report and all other relevant papers on which the prosecution proposes to rely. Mr. Dutt has urged that the Division Bench in delivering the above judgment did not sufficiently consider the provisions of Sub-section (4) of Section 74 of the Bengal Excise Act, which provides that when an investigation by an Excise Officer is completed and it appears that there is sufficient evidence, the Investigating Officer shall submit a report to a Magistrate having jurisdiction to enquire into or try the case, and the report shall for the purposes of Section 190 of the Criminal Procedure Code the deemed to be a police report. Guha Ray, J. , relied on the fact that by Sub-section (i) of Section 74 Sections 160 to 171 of the Criminal Procedure Code were made applicable and Section 173 was not made applicable and on the other hand there was a specific provision in Sub-section (4) of Section 74 for forwarding the report to the Magistrate on which the Magistrate was to take cognizance. Guha Ray, J. , also referred to other provisions of the Excise Act and came to the conclusion that an investigation by an Excise Officer was an investigation under the special provisions of the Excise Act itself, although he could exercise in the course of the investigation certain powers conferred by Sections 160 to 171 of the Criminal Procedure Code. Mr. Dutt has relied on the fact that Sub-section (4) of Section 74 uses the term 'police report' and provides that the report submitted by an Excise Officer after investigation shall be deeme