ORDER

M.H. Beg, J. - This is an appeal by the State against the acquittal of a woman called Govindi resident of Kalsi within police station Chakrata in Dehradun and a man called Mukundi from charges u/s 60, UP Exise Act. It is alleged that Govindi was caught selling illicit liquor to Mukundi and hence both were charged.

2. Among the objections taken on behalf of the accused in the court of the SDM Dehradun, where they were tried, was one relating to the powers of the Head Constable Babu Ram (PW 3), who caught Smt. Govindi selling liquor to Mukundi, to enter the premises and to arrest the accused at the place where the illicit liquor was being sold. The trying Magistrate held:

I have gone through the relevant Section 48 (et seq) of the Excise Act and find that a police officer below the rank of a Station Officer incharge of a police station it not empowered to effect a search or to inspect the place of sale of liquor without warrant of a Magistrate or District Magistrate. Head Constable Babu Ram was certainly not the S.O. Chakrata. As such the inspection by Head Constable Babu Ram was illegal.

I may observe that the way in which the learned Magistrate has dealt with the provisions of the UP Excise Act (hereinafter referred to as the Act) shows that he did not take the trouble of studying or trying to understand the provisions of the Act properly. Section 48, upon which the learned Magistrate has relied, merely deals with the powers of inspection which are conferred upon "The Excise Commissioner, or a Collector, or any officer of the Excise Department not below such rank as the State Government may prescribe, or any police officer duly empowered in that behalf." Such officer "may enter and inspect, at any lime by day or by night, any place in which any licensed manufacturer carries on the manufacture of or stores any intoxicant and may enter and inspect, at any time, within the hours during which sale is permitted, and any other time during which the same may be open, any place in which any intoxicant is kept for sale by any licensed person, and may examine, test, measure, or weigh any materials, stills, utensils, implements, apparatus, or intoxicant found in such place and may seize any measure, weights, or testing instruments which he has reason to believe to be false,"

3. A perusal of Section 48 conveys its obvious intention which is to confine the power of an entry for purposes of an inspection contemplated by the section to the officers specified therein. It does not apply to an entry of the premises for the purpose of making aa arrest and seizing an intoxicant or other articles when the offence is being or has been committed before the very eyes of a police officer as in the case before me. The entry in the present case was apparently into a part of a house adjoining the road so exposed that every one could see what was going on in it. The entry was neither for purposes of an inspection nor for the purposes of searching any premises, but only for making the arrest and for the seizure of the intoxicant.

4. The provisions of Chapter IX of the UP Excise Act, other than Sections 48 and 50 of the UP Excise Act, deal with the powers of investigation, of issuing search warrant of premises, and the connected procedure, and these provisions are not relevant here, This was not a case of either a search of premises or of entry of the premises of Smt. Govindi for any object except that of making an arrest for the offence which she was seen to have committed in front of the Head Constable and the witnesses. Therefore, Section 48 and other sections except Section 50 of Chapter IX of the Act, were inapplicable/

5. Reliance was placed on behalf of the State on Section 50 of the UP Excise Act which runs as follows:

Any officer of the excise, police, salt, opium or land revenue department, not below such rank and subject to such restrictions as the State Government may prescribe any other person duly empowered in this behalf, may arrest without war