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1977 Supreme(Cal) 407
HIGH COURT OF CALCUTTA
Sudhamay Basu, J.
Pravat Kr. Saha & anr.
Vs.
State
Criminal Reference No. 23 of 1974
Decided on : 20th December, 1977
Moni Bhusan Sarkar, S.P. Talukdar for the petitioner
Manas Chowdhury for the State
The option to compound or prosecute an offense under the Bengal Excise Act belongs to the offender, not the department. Once the department opts for composition and obtains a stay order, it is not open to them to go back upon their conduct and suddenly prosecute the accused.
Headnote:
BENGAL EXCISE ACT, 1909 - SECTION 65(2) - RULE 254(5) - STAY OF PROSECUTION - EFFECT OF STAY ORDER ON CRIMINAL COURT - OPTION TO COMPOUND OR PROSECUTE BELONGS TO OFFENDER - DEPARTMENT CANNOT SIMULTANEOUSLY PROCEED WITH BOTH.
Fact of the Case:
The petitioners, holders of an excise license, were called upon by the Superintendent of Excise to explain why their license should not be canceled or why they should not be punished for failing to report the arrival of foreign liquor consignments. The Superintendent directed them to pay a composition fee of Rs. 1000/- in lieu of cancellation or suspension of the license. The petitioners appealed to the Additional District Magistrate, who stayed the realization of the composition money. Despite the stay order, the Superintendent initiated prosecution against the petitioners. The petitioners filed an application for discharge under Section 253(2) of the Criminal Procedure Code, which was rejected by the Sub-Divisional Judicial Magistrate.
Finding of the Court:
The court held that the department's option to compound or prosecute an offense under the Bengal Excise Act belongs to the offender, not the department. Once the department opted for composition and obtained a stay order, it was not open to them to go back upon their conduct and suddenly prosecute the accused.
Issues: 1. Whether the department can simultaneously proceed with both composition and prosecution of an offense under the Bengal Excise Act. 2. Whether the stay order passed by the Collector in the composition proceedings binds the criminal court.
Ratio Decidendi: 1. Section 65(2) of the Bengal Excise Act provides that upon payment of the composition fee, the accused person shall be discharged and no further proceedings shall be taken against them. 2. Rule 254(5) of the Bengal Excise Rules makes it clear that the offender has the option either of compounding the money or of having his license canceled or being prosecuted, and that the term 'fine' should not be used in connection with cases compounded under Section 65. 3. The department's representation by conduct that it would proceed with the composition proceedings estops them from suddenly prosecuting the accused.
Final Decision: The court accepted the reference and set aside the order of the Sub-Divisional Magistrate directing the prosecution of the petitioners.
The relevant facts seem to be as follows:
The Superintendent of Excise, Burdwan, called upon one Probhat Kumar Saha and Satyaranjan Banerjee to explain why their excise licence should not be cancelled under S. 42 of the Bengal Excise Act, 1909 or why they should not be otherwise punished, as arrival of certain consignments of foreign liquor in the excise shop belonging to them was not reported to the excise authorities. On the March 23, 1973 the Superintendent of Excise called upon them to pay Rs.1000/- by way of composition of the offence under S. 65 of the Bengal Excise Act in lieu of cancellation or suspension of licence. The money was to be paid by March 28, 1973. As the money was not paid by the same date on March 29, 1973 the Superintendent of Excise directed the C.S.I. to start prosecution against the petitioners. On March 30, 1973 Criminal Case No. 330 of 1973 was filed in the Court of Sub-Divisional Judicial Magistrate against the petitioners and orders were passed for issue of summons under S. 46(a) of the Bengal Excise Act read with S. 54(B) and (C) thereof. It, however, appears that the Additional District Magistrate, Burdwan, on an appeal made by the petitioners passed an order on March 29, 1973 staying realisation of the composition money and the same was also communicated to the Superintendent of Excise on March 29, 1973. The petitioners filed an application before the learned Sub-Divisional Judicial Magistrate for discharge under S. 253(2) of the Criminal Procedure Code, but the prayer was disallowed on the ground, inter alia, that the composition was a departmental action, but the prosecution was not barred under S. 43 of the Code of Criminal Procedure. Being aggrieved the petitioners presented an application under Ss. 435 and 438 of the Code Criminal Procedure praying that a reference should be made to the High Court with recommendations. Upon that the present reference was made by the learned Additional Sessions Judge, 1st Court, Burdwan.
2. It was argued on behalf of the petitioners that in terms of S. 65(2) of the Bengal Excise Act it was open to the petitioners to make payment until their appeal was rejected by the Collector. The said S. 65 is as follows:
"(1) The Collector, or any Excise Officer (not below the rank of Inspector of Excise, authorised by the Collector by general or special order in this behalf).-
(a) may accept from any person whose licence, permit or pass is liable to be cancelled or suspended under clause (a), clause (b) or clause (c) of (sub-section (1) of section 42), or who is reasonably suspected of having committed an offence punishable under (any section of this Act other than section 58), payment of a sum of money, not exceeding (one thousand) rupees, in lieu of such cancellation or suspension or by way of composition for such offence, as the case may be ; and
(b) in any case in which any property has been seized as being liable to confiscation under Section 63, may, at any time (before the case is lodged before the Magistrate), release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer.
(2) When the payment referred to in sub-section (1) have been duly made, the accused person, if in custody, shall be discharged, and the property seized (if any) shall be released; and no further proceedings shall be taken against such person or property."
In terms of the said sub-s. 65(2) upon payment the accused person even, if in custody, shall be discharged.
3. Mr. Chakraborty, the learned Advocate appearing on behalf of the State, however, argued that the said sub-section constitutes a bar to prosecution only in case of actual payment being made. So long as the payment was not made there was no bar to prosecution under the said sub-section. It is true sub-s. (1) authorises the Collector or any excise officer to compound an offence and to realise the property liable to confiscation, but that does not prevent prosecution being
