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2024 Supreme(Gau) 1666
IN THE GAUHATI HIGH COURT (HIGH COURT OFASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, MRIDUL KUMAR KALITA, JJ.
XXX Guwahati, Assam – Appellant
Versus
In Re - State Of Nagaland And Anr – Respondent
Crl.Ref. 1 of 2021
Decided on : 25-11-2024
Advocate Appeared:
For the Appellant :MR. T J MAHANTA, SR. ADV, Ms. P Das, Advocate.
For the Respondent: MS. T KHRO,
IMPORTANT POINT
Cognizance of offences under the NLTP Act can only be initiated by a complaint from the Director of Prohibition or authorized officer, not by police FIRs.
Headnote:
(A) Nagaland Liquor Total Prohibition Act, 1989 - Sections 42 and 43 - Cognizance of offences - The court addressed whether a Magistrate can stop proceedings at the stage of taking cognizance in cases under the NLTP Act, which requires a complaint from the Director of Prohibition or authorized officer. The court found that FIRs lodged by police do not fulfill this requirement, thus no cognizance can be taken. (Paras 10, 11, 15)
(B) Criminal Procedure Code, 1973 - Section 258 - Power to stop proceedings - The court clarified that Section 258 applies only to summons procedure cases, not warrant procedure cases as in the present matter. The learned Magistrate cannot stop proceedings when cognizance has not been taken. (Paras 12, 13, 14)
Facts of the case:
The Reference arose from multiple GR cases under the NLTP Act, where the learned Magistrate questioned the legality of taking cognizance based on police FIRs instead of a complaint as mandated by the Act.
Findings of Court:
The court concluded that cognizance cannot be taken without a proper complaint, and the learned Magistrate should dismiss or reject the case due to procedural flaws.
Issues: The main issue was whether the Magistrate could stop proceedings when cognizance had not been taken as per the Act's requirements.
Ratio Decidendi: The court ruled that the initiation of proceedings must comply with the NLTP Act's provisions, and FIRs do not suffice for taking cognizance under Section 43.
Result: Reference answered in favor of the accused, directing the Magistrate to dismiss the case.
JUDGMENT :
(SK Medhi, J)
The present Reference has been made under Section 395 of the Cr.PC by the learned Judicial Magistrate First Class, Tuensang on the following question of law:
“1. Whether a Magistrate (in police registered warrant procedure case), can drop/stop proceedings at the stage of taking cognizance against an accused in the NLTP Act cases, since there is an express bar for taking cognizance except upon ‘a complaint’ made by the Director of prohibition or an officer authorised by him under Section 43 of the Act?”
2. The matter arises out of 9 nos. of GR cases which were registered in connection with the Nagaland Liquor Total Prohibition Act, 1989 (Act of 1989). The said cases had emanated from FIRs registered by the police based on certain information and after completion of the investigation, charge sheets were filed. After filing of the charge sheets, the learned Magistrate, by referring to Section 43 of the Act of 1989 has expressed a predicament whereby cognizance of offence under the said Act was not to be taken unless a complaint was made by the persons authorized in that behalf. At the same time, the learned Magistrate had also expressed a predicament regarding the stoppage or dropping of the proceedings which was permitted only under Section 258 of the Cr.PC pertaining to Summons Procedure cases. The learned Magistrate had observed that offences committed under Section 44 of the Act of 1989 were all Warrant Procedure cases. Under those circumstances, the learned Magistrate by order dated 05.03.2021 had made the present Reference. The said Reference was transmitted in the prescribed procedure.
3. We have heard Shri TJ Mahanta, learned Senior Counsel assisted by Ms. P Das, learned counsel appearing for the Gauhati High Court. We have also heard Ms. T Khro, learned Addl. Advocate General, Nagaland.
4. Shri Mahanta, learned Senior Counsel has submitted that the penalties prescribed for the offence in question are the Warrant Procedure cases and therefore, the learned Magistrate cannot exercise powers under Section 258 of the Cr.PC to stop the proceedings. He has submitted that admittedly, the initiation of the proceedings were by means of FIRs lodged by the police on certain information and not in the form of a complaint as required under Sections 42 and 43 of the Act of 1989. He submits that since Section 43 of the Cr.PC/Act lays down an embargo on the aspect of taking cognizance other than in the manner provided therein, no cognizance can be taken in the cases at hand.
5. Ms. T Khro, learned Addl. AG, Nagaland has submitted that an affidavit has been filed by the State on 30.11.2021 wherein, it has been stated that vide a notification dated 21.05.2012, the Excise Department has appointed the Officer-in-Charge of all Police Stations under the Act of 1989 to function as Prohibition Officer under the Director of Prohibition, Nagaland. She has, however informed that there is some discussions on the issue regarding the aspect of prohibition in the State.
6. Before going to answer the Reference, it would be convenient, if the relevant provisions of the Act of 1989 are extracted hereinbelow:
“42. Offence to be Reported:-
Every officer of the State Government, and every officer or servant of a local authority, and the Gaon Hurrah or Assistant Gaon Hurrah of a village shall be bound;
(a) to give immediate information at the nearest Police Station or to any officer or person authorised in this behalf of the commission of any offence and of the intention or preparation to commit any offence under this Act which may come to his knowledge;
(b) to take all reasonable measures in their power to prevent the commission of any such offence which they may know or have reason to believe is about or likely to be committed.
43. Cognizance of Offence:-
No Court shall take congnizance of an offence under this Act unless a complaint in this regard in made by the Director of Prohibition or any officer authorised by him.”
7. Prohibition Officer h
