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BE Act cases: Issues & Problems

Provisions of Bengal Excise Act : Issues & Problems -- Subrata Biswas Additional Excise Commissioner , Govt of WB & Collector of Excise, Kolkata. BE Act cases: Issues & Problems. Courts are burdened with thousands of long pending cases

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BE Act cases: Issues & Problems

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  1. Provisions of Bengal Excise Act: Issues & Problems-- SubrataBiswasAdditional Excise Commissioner, Govt of WB&Collector of Excise, Kolkata

  2. BE Act cases: Issues & Problems • Courts are burdened with thousands of long pending cases • Problems that plague the courts as regards Excise Cases—from detection to investigation to prosecution • Are there ways to save precious time? • Significance of Excise cases—Not always a matter of a few thousand rupees for the exchequer! • Need to dispose of alamats

  3. B.E. Act: A ‘Special Act’ • ‘Special Act’ vis-à-vis ‘General Act’ • Definition of ‘Special Law’—Sec 42 of the IPC—Preamble to the BE Act—Purpose • Seventh Schedule of the Constitution—Art 246—State List (Entry 51)

  4. B.E. Act: Its ‘Speciality’ • Sec 5 of CrPC— ‘Special’ to a certain extent— ‘General’ otherwise—CrPC to be applied accordingly • BE Act offences—Are they ‘cognizable’?—Sec 2(C) of IPC—Sec 67 of the BE Act

  5. B.E. Act: Its ‘Speciality’ • Initiation of investigation—Sec 156 of CrPC vis-à-vis Sec 73 of BE Act—Both Police & Excise Officers empowered to detect (Sec 67 of BE Act) • Excise Officers invested with investigating powers of Police Officers [Sec 74(1)(a) of BE Act]

  6. B.E. Act: Its ‘Speciality’ • Police Officer reports ‘seizure’ to the Magistrate u/s 102 CrPC—Excise Officer reports to the Collector u/s 78(1) of BE Act • Collector decides custody of seized articles u/s 78(2) of BE Act during investigation.

  7. B.E. Act: Its ‘Speciality’ • For a case booked by Excise Officer, Magistrate not in the scenario till Sec 74(4) of BE Act is attracted—no orders by Magistrates thus ‘maintainable’—[Babulal Lodhi vs. State of MP, 1987 CrLJ, 1709 (MP)] [Deb Kumar Adak vs. State of WB, 1992 C CrLR (Cal) 118 • Sec 167(5) of CrPC for Police Officer—vis-à-vis Sec 92 of BE Act for Excise Officer

  8. B.E. Act: Its ‘Speciality’ • Police Officer submits Charge-sheet u/s 173 CrPC—Excise Officer submits Complaint u/s 74(4) of BE Act read with Sec 190 of CrPC.

  9. Admissibility of statement before Excise Officer • Early pronouncements that Excise officials ARE police officers for Sec 25 of Evidence Act [Emperor vs.Dinshaw Driver (1928) 31 Bom LR 49; Ibrahim Ahmad vs. King Emperor (1931) 58 Cal 1260] • But a few post-Independence pronouncements that Excise officials ARE’NT [Raja Ram vs. State of Bihar AIR 1964 SC 828; Badaku Joti vs. State of Mysore AIR 1966 SC 1746]

  10. BE Act: A few critical issues • Manufacture & sale from unlicensed premises—fiscal implications NOT the be-all-and-end-all—public health security much more critical—importance of investigation by IO--importance of JC • Case Diary—its relevance & applicability —popular but erroneous interpretation of Sec 74(1)(a) of BE Act

  11. B.E. Act: Its ‘Speciality’ • Sec 92 of BE Act for Excise Officer • Sec 74(4) of BE Act/Sec 190 of CrPC/Secs 2(d), 2(r) of CrPC • Report u/s 74(4) of BE Act—Police Report—Charge-sheet—prior examination of complainant/witnesses not required u/s 200 CrPC [Asst.Conservator of Forest vs. Fatimunnisa Begum, 1993 CrLJ 1291 AP] • Part A of Ch.XIX, CrPC applicable; no prejudice [Ashiq Miyan case AIR 1966 MP 1]

  12. Saving precious time of the courts • Police may not routinely approach courts for permission to hand over their Excise cases to Excise Department—Police competent to investigate u/s 156 CrPC r/w Sec 73 of BE Act & 773-EX dated 18th/21st July 1980 • Police may justify why such ‘hand-over’ may be necessary [Mitesh vs. State; Gujrat High Court, CrAppl-1384 of 2007; (specialized agency)]

  13. BE Act: A few critical issues • Specialized knowledge and skills to be imparted to Police, if necessary—a la NDPS issues—[State vs. Gautam Singh; Addl Sessions Judge, Delhi; 12.09.08; FIR 19/08] • If felt necessary, Excise to impart required training to Police

  14. BE Act: Issues in ‘Speedy Trial’ • More often than not, samples not sent for analysis in Police cases—no CE report, no charge-framing—cases stockpile • Can the Magistrates ask questions for ensuring ‘speedy’ investigation?—for putting the IO on the right track—[Ms G.K.Gill vs. Central Govt;ADJ, Delhi;CR-32/2013]—power u/s 156(3) CrPC

  15. BE Act: Issues in ‘Speedy Trial’ • Experts may not be ordinarily summoned—a ploy by the Defence—only in case there is ground for ‘doubt’—[Ram Dayal vs. Municipal Corporation of Delhi, AIR 1970 SC 366][ Dasu vs. State of Maharashtra, 1985 CrLJ 1933] • Block of 2 or 3 dates

  16. BE Act: Issues in ‘Speedy Trial’ • Not much scope within existing framework. • No summary trials. • Lok Adalats without criminal jurisdiction [Gulzar Begum vs. Lok Adalat, Madras High Court, 24.03.2011] • How about plea bargaining? • How if examination of the complainant/witnesses before charge not be insisted upon? [Proviso (a) Sec 200, CrPC; [Asst. Conservator of Forest vs. Fathimunnisa Begum 1993 CrLJ 1291 (AP)]

  17. BE Act: Issues in Jurisdiction • Sec 9 CPC—all civil suits triable except those cognizance whereof stands barred, explicitly or implicitly • Licence settlement, a State policy—Art 47 of the Constitution—right neither natural, nor fundamental—[Cooverjee Bharucha vs. Excise Commissioner, Ajmer, A.I.R 1954 S.C 220]

  18. Dealing in liquor—Not a fundamental right • Nashirwar vs. State of MP AIR 1975 SC 360 • Har Sankar vs Dy. Taxation and Excise Commissioner, Punjab, AIR 1975 SC 1121 • State of MP vs Nandram Jaiswal, AIR 1987 SC 251 • Special policy—BE Act, a special law—special remedial mechanism

  19. Remedy to special right beyond civil jurisdiction • Dhulabai & Ors vs State of MP [1968]3 SCR 662. • Kamala Mills Ltd. vs State of Bombay, [1966]1 S.C.R 64 • The Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke AIR 1975 SC 2238 • Secretary of State vs Mask & Co. (1940) 42 BOM L.R 767

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