A report by an Excise officer under Section 67 of the Rajasthan Excise Act is not a police report and therefore, the procedure under Section 251a Cr. P. C. is not applicable to a case instituted on such a report.

D. M. BHANDARI, J.

( 1 ) THIS is a revision application on behalf of the State against the order of the learned Sessions Judge, Jhunjhunu dated 29-9-1956, by which he set aside the order of conviction of Bhagwana opposite party passed by the learned Sub divisional Magistrate, Nawalgarh and remanded the case to him with the direction to undertake fresh trial in accordance with law.

( 2 ) THE Excise Inspector Shri Bhawani Prasad submitted a report in the court of the sub Divisional Magistrate, Nawalgarh, that two bottles of illicit liquor were recovered from the house of the accused and further some liquid and instruments of distillation were taken possession of from his field and that thereby he had committed an offence under Section 54 of the Rajasthan Excise Act (hereinafter to be called the Act ). The learned Magistrate on the presentation of the report recorded the statement of Bhagwana. Bhagwana admitted the prosecution case and he was straightway convicted under Section 54 of the Act and was sentenced to three months simple imprisonment and to pay a fine of Rs. 500/-, in default to undergo further simple imprisonment for three months.

( 3 ) BHAGWANA filed an appeal to the court of the Sessions Judge, Jhunjhunu, and the learned Ses- sions Judge accepted the appeal and sent the case back for retrial.

( 4 ) IT may be mentioned that an offence under Section 54 of the Act is punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 2000/- or with both. The learned Sessions Judge is of opinion that the accused should have been tried in accordance with the procedure provided under Section 252 Cr. P. C. and the subsequent sections and since that procedure was not followed, the trial was illegal.

( 5 ) IN this revision petition on behalf of the State it is urged that the trial court was justified in recording the statement of the accused as the procedure to be adopted in this case was as provided in Section 251-A and under Section 251a (2) the magistrate could examine the accused. It may be said at once that the learned magistrate could convict the accused, even if he followed the procedure provided in Section 251a, only after framing the charge and after the charge has been read and explained to the accused and he had pleaded guilty to it. In this case no charge was framed and as such the Magistrate was obviously wrong in convicting the accused even if he followed the procedure provided in Section 251a Cr. P. C.

( 6 ) BUT in my opinion the magistrate should have followed the procedure provided tor the trial of warrant cases in Section 252 and subsequent sections. The procedure provided in Section 251a can be adopted only in a case instituted on a police report. In a case instituted otherwise than on a police report, the procedure is laid down in Section 252 and the subsequent sections. It is argued by the assistant Government Advocate that a case, the cognisance of which is taken by the Magistrate on the report of the Excise Officer as laid down in Section 67 of the act, must be taken to have been instituted on a police report within the meaning of Section 251a Cr. P. C. Reliance is placed in this connection on Section 44 of the act which lays down the powers of the officers of the Excise Department to investigate into the offences punishable under the Act, It is provided in Section 44 (1) that any officer oi the Excise Department not below such rank as the government may prescribe under the Act may investigate into any offence punishable under the Act, committed within the limits of the area in which such officer exercises jurisdiction. Under Section 44 (2) any such officer may exercise such powers in respect of such investigation as an officer incharge of a Police Station may exercise in a cognisable case under the provisions of Chapter XIV of the Cr. P. C. 1898 of the Centra! legislature as adapted to Rajasthan, On the strength of this section it is urged that the