The main legal point established in the judgment is that the competency of the officer conducting the investigation and search under the Excise Act is crucial, and the prosecution based on the charge sheet concluded by an incompetent officer can be deemed an abuse of the process of Court.

JUDGMENT :

1. Petitioner seeks quashment of charge-sheet No. 1 of 2015 titled "State v. Sat Pal & Anr.", pending disposal in the Court of learned Judicial Magistrate Malhar Billawar, arising out of FIR No. 1/2015 registered at Police Station Billawar, for the commission of offence punishable under section 48-(a) Excise Act.

2. Learned counsel for the petitioner submits that at the behest of Sarpanch Krishan Chand, the petitioner was implicated in false cases registered at Police Station Malhar Billawar. He has further submitted that under the Excise Act, the investigation of the case and the search cannot be made by a police officer below the rank of Sub Inspector, whereas in the impugned case, the police officer who conducted the search was not of the rank of Sub Inspector but Assistant Sub Inspector, as such, the registration of the case and the proceedings arising out of that resulting into the charge sheet is a complete abuse of process of Court against the petitioner who is an innocent person.

3. Respondent has filed reply to the petition asserting therein that 40 pouches of liquor was recovered from the possession of the petitioner and his brother Jia Lal which they had kept in a white colored plastic bag in their kirayana shop (khokha) at Lower Baggan stream Desi Chaki (Gharat), as such, they had committed the offence punishable under section 48-(a) Excise Act; that another case vide FIR No. 2/2020 was also registered against them for the commission of offences punishable under sections 409/411 RPC and 3/7 E.C. Act on a written application of complainant Krishan Chand Sarpanch.

4. As per charge sheet pending before the Court of learned Additional Special Mobile Magistrate, Billawar, the case registered at Police Station Malhar vide FIR No. 1/2015, after its investigation was concluded into a charge sheet for the commission of offence punishable under section 48-(a) Excise Act against the petitioner and his brother Jia Lal Sharma with the accusation that on 11.01.2015 at about 12:30 PM, both of them were found in illegal possession of Country liquor at their kirayana shop at their Gharat (water mill) at Lower Baggan nallah which was recovered by a ASI Sita Ram Sharma of Malhar Police Station, who had also investigated the case. The contention of learned counsel for the petitioner is that the officer below the rank of Sub Inspector was not competent to search the premises or to conduct investigation of the case.

5. Section 27 of the Excise Act which is relevant, is extracted as under :

"27. Power to certain officers to search houses, etc. without warrant.

[When any Revenue Officer not below the rank of a Naib-Tehsildar or a Police Officer not below the rank of Sub-Inspector or any officer of the [Excise Department] not below the rank of Inspector in any locality to which this Act applies] has reasons to believe that an offence under this Act has been committed, and that if steps are taken to obtain a search warrant under the last preceding section, it is likely to go undetected, he may, after recording his reasons and the grounds of his belief, at any time by day or night, enter and search any place and may seize anything found therein, which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

6. On a consideration and perusal of the provisions contained under section 27 of the Excise Act, it is clear that no Revenue Officer below the rank of Naib Tehsildar or a Police Officer not below the rank of Sub Inspector or any officer of the Excise Department not below the rank of Inspector has reasons to believe that an offence under this Act has been committed in any locality to which the Excise Act applies and that if steps are taken to obtain a search warrant under section 26, it is likely to go undetected, he may, after recording his reasons and the ground