The main legal point established in the judgment is the competency of the Magistrate to try offences summarily, based on the imprisonment term and the provisions of the Criminal Procedure Code and the Goa, Daman and Diu Excise Duty Act 1964.

JUDGMENT : This is an acquittal appeal under S. 417 of the Criminal Procedure Code directed against the acquittal order passed by the learned Magistrate, Eurico das Dores da Silva, acquitting the accused (1) and convicting the accused (2) for offences under Section 8 read with Section 30 (a) of the Goa, Daman and Diu Excise Duty Act 1964, and sentencing him to pay a fine of Rs. 100. There is also an 'appeal' against the order passed by the learned Magistrate directing that the 637 quart bottles of Old Tavern Whisky secured from the possession of accused (2) be confiscated in case he does not pay a fine of Rs. 100 in accordance with the provisions of Section 39 of this Act.

2. The facts leading to this appeal, broadly stated, are that the two accused were tried summarily by the learned Magistrate for offences under Section 8 read with Sections 30(a) and 37 of the Goa, Daman and Diu Excise Duty Act, 1964. The accused (1) pleaded not guilty: the accused (2) pleaded guilty. The State felt aggrieved by the acquittal of accused (1) and hence the present appeal.

3. Shri Surlikar, learned counsel for the accused (2), contends that the learned Magistrate was not competent to try the case summarily and, therefore, the trial is void. This contention is not without force. Section 260(1) enables any Magistrate of the first class specially empowered in this behalf by the State Government to try in a summary way all or any of the offence enumerated therein. We are concerned in this case with the offence enumerated in Section 260(1)(a). The learned Magistrate was competent to try in a summary way the offences not punishable with imprisonment for a term exceeding six months, but where imprisonment exceeds six months he had no power to try the offences in a summary way.

Section 30 (a) of the Goa, Daman and Diu Excise Duty Act, 1964 provides penalty for contravention of certain provisions of the Act; one of the provisions for which penalty is provided is possession of liquor. The sentence, on conviction may extend to Rs. 1000 or to imprisonment for a term which may extend to one year or with both.

The offence under Section 30(a) was not triable summarily as the imprisonment for this offence extended to one year. If the imprisonment had been for a term six months or less then the learned Magistrate would have been competent to try this offence in a summary way, S. 8 relates to possession of and transactions in liquor; it does not provide any penalty S. 37 also does not prescribe any penalty; it relates to confiscation

Section 530(q) of the Code provides that if any Magistrate, not empowered by law in this behalf, tries an offender summarily, his proceedings shall be void. This is an irregularity which vitiates the proceedings; it is not an irregularity contemplated by Section 529 of the Code which does not vitiate the proceedings. As, already stated, the learned Magistrate was not empowered to try the accused summarily because of the imprisonment being for a term exceeding six months and therefore, the trial was void.

4. Shri Tamba, learned Government Pleader appearing on behalf of the State, states that in the memo of appeal drawn up by the Public Prosecutor the question of want of jurisdiction by the Magistrate was not raised. He concedes that in view of the sentence of imprisonment exceeding six months prescribed for an offence under Section 30(a) of the Goa, Daman and Diu Excise Duty Act, 1964, the learned Magistrate had no power to try the accused summarily.

5. The acquittal of the accused (1) is reversed; it is directed that he should be retried. As regards the accused (2), there is no appeal by him from his conviction but the State has appealed against the order passed by the learned Magistrate giving him the option to pay fine in lieu of confiscation. This appeal does not lie but it is treated as a revision petition. In pursuance of the powers vested in this Court under S. 439(1) of the Criminal Procedure Code the conviction and sentence of this

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