1. The challenge in this revision petition is the order of discharge passed by the learned Magistrate in a case in which cognizance was taken against the accused/respondents 2 and 3 for offence allegedly committed by them under section 63 of Abkari Act. The complaint was, in fact, filed against the accused/respondents 2 and 3 alleging commission of offences under sections 55, 56 and 58 of Abkari Act, but cognizance was taken by the Magistrate only under section 63 of Abkari Act.

2. It is stated that Excise Inspector, Preventive Officer and Asst. Excise Commissioner were examined and it was thereafter the cognizance was taken against the accused for offence under section 63 of Abkari Act. It is a case where cognizance was taken based on a private complaint filed by the petitioner herein. Since cognizance was bad in law the learned Magistrate (the successor Magistrate) dropped the proceedings and released the accused.

3. The complainant, who is the revision petitioner, contends that the order passed by the learned Magistrate is unsustainable. The accused could have been either acquitted or convicted, but the learned Magistrate was not justified in stopping the proceedings and releasing the accused. The view taken by the learned Magistrate that cognizance cannot be taken otherwise than on the report of the Abkari Officer is incorrect, it is contended. According to the petitioner, Section 39 of the Abkari Act empowers a private person also to approach the Magistrate complaining of commission of Abkari offences and as such the view taken by the learned Magistrate, that cognizance cannot be taken based on a private complaint, is illegal and unsustainable.

4. Section 3(2) of Abkari Act defines 'Abkari Officer' thus:

“The Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”

5. Under section 4(d) of the Act, the Government may, by notification in the Gazette, appoint officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act.

6. Section 5(1) of the Abkari Act says that the Government may, from time to time, make rules prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes.

7. Section 40 of the Abkari Act deals with the procedure on arrest and seizure of the contraband articles. Section 41 deals with the disposal of the persons arrested. Section 41A(1)(a) makes it clear that notwithstanding anything contained in the Code of Criminal Procedure, every offence punishable under the Abkari Act shall be cognizable.

8. Section 2(c) of the Code of Criminal Procedure defines 'cognizable offence' as:

“an offence for which, and 'cognizable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant”

In the case of a cognizable offence, the Police Officer can conduct investigation irrespective of any order of the court in relation to such cognizable offence and the court may have no control over the investigation or over the action of the police in holding such investigation. The Magistrate cannot issue direction to the Police to conduct the investigation of the case in a particular way since the matter is completely within the domain of the investigating officer.

9. The Government has notified the officers of the Police, Revenue, Abkari and other departments as Abkari Officers as per section 4 of the Abkari Act. Section 34 of the Abkari Act empowers the Abkari Officer to arrest any person found committing offence under the Act, following the procedure prescribed under the Abkari Act and the provisions of the Code of Criminal Procedure. Section 36 deals with the procedure to be followed in the conduct of the searches.

10. Section 30 of the Abkari Act empowers any Magistrate, upon information obtained and after such enquiry as he thinks necessary, has reason to believe that an