Which Court has jurisdiction to try Excise Offences? Whether the Magistrate Court or the Court of Session? [ A.P.D.J. 2013 ]

Introduction:-

Andhra Pradesh Government has recently amended certain provisions in the A.P.Excise Act, 1968 and the Andhra Pradesh Prohibition Act, 1995. Repeat offenders may now be imprisoned upto 8 years. The Special Enforcement Bureau (SEB) has been notified in the Act. The amended Act defines the word ‘bootlegging’. The amended law has provisions for invoking the Preventive Detention Act. It has put in place stringent punishments. Even simple offences may now warrant two years of imprisonment under the news amendment laws. Inasmuch as the punishment for the excise offences has been increased, some doubts are crept in the mind of some newly recruited judicial officers as to the point whether Magistrate or Court of Session has jurisdiction to entertain the bail applications, remands and trial of excise offences and so I have tried in this article to clarify that point for the benefit of legal fraternity in sub ordinate courts.

There is no dispute that offences under the A.P.Excise Act, 1968 are cognizable, as per recent amendment of the Act of 2020 (Act No. 17 of 2020), as provided in section 56 -A of the said Act, therefore in view of principles laid down by the Apex Court in case of Lalita Kumari Vs. Govt. of U.P. and others1, it is lawful for Special Enforcement Bureau (SEB) officials to register the case and to investigate the same. Under the Act No. 17 of 2020, in the A.P.Excise Act, 1968, Sections 2, 34, 46, 46-B, 46-C, 48, 50-A, 50-B, 51, 53, 53-A, 55, 56, 57, 58, 60, were 61 were amended. New sections 56-A was inserted. In 2020, the Andhra Pradesh Prohibition Act, 1995 was also amended under the Act No. 18 of 2020. Under this new amendment, Section 7-B was inserted; sections 8-A, 8-B, and 8-C were inserted after amending section 8 of the Act. Sections 11-A and B, 13-B and C, 14, 17, 24, 28 and 29 were amended in the Andhra Pradesh Prohibition Act, 1995. These amendments shall be deemed to have come into force with effect on and from the 20th May, 2020.

Because of the recent amendment in Andhra Pradesh Exise Act,1968, the Prohibition and Excise Officer can now be called as ‘ Special Enforcement Bureau Officer’. Certain new terms such as Grama/Ward Mahila Samrakshana Karyadarshi, Village/Ward Secretariat and Grama/Ward Volunteers belong to the Department of Grama Volunteers/Ward Volunteers and Village Secretariat/Ward Secretariats were inserted. The wards, ‘Special Enforcement Bureau’ was introduced in the Act. Now, ‘Special Enforcement Bureau Officer’ means the Commissioner of Special Enforcement Bureau. After the words, ”the Prohibition and Excise Superintendent”, the words ” and/or ”the Assistant Commissioner, Special Enforcement Bureau’ and/or ‘the Executive Magistrate’ are inserted. See. New Section 46-B of A.P.Excise Act. See. Act 17 of 2020.

Cognizance and trial of offence:-

Under new section 56- A of the A.P. Excise Act, 1968, all offence under this Act are cognizable. It is also mentioned that the provisions of Cr.P.C with respect to cognizable offences shall apply to them. It is clearly mentioned in the Proviso of new section 56-A that the offences punishable with imprisonment for term not exceeding two years under the A.P.Excise Act,1968 shall be tried in accordance with the procedure prescribed by Chapter – XXI of Cr.P.C. ( Chapter – XXI of Cr.P.C deals with ‘Summary trials’. See. Sections 260 to 265 of Cr.P.C.).

Amendment of section 8 of A.P. Prohibition Act, 1995:-

In the principal Act, in section 8,

(i) in clause (b), in sub-section (I), for the words ‘five years’, the words ‘eight years’ are inserted.

(ii) In clause (e), for the words ‘five years’, the words ‘eight years’ are inserted.

In the principal Act, after section 8, Sections 8-A, 8-B, and 8-C are also inserted. Under new section 8-A of A.P.Prohibiton Act, 1995, whoever in contravention of Section 7-B of the Act indulges in the manufacture or storage of illicit distilled alcohol liquor shall be punished with imprisonment for a term which shall not be less than three years but which may extend upto eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence. Section 8B deals with ‘penalty for sale, export, import and transport of alcoholliqur manufactureed illegally and clandestinely whereas section 8-C of the Act deals with Penalty for Conspiracy.

Which Court has jurisdiction to try Excise offence? Whether Judicial Magistrate or Sessions Judge?

It is important to note that either in A.P. Excise Act, 1968 or in A.P. Prohibition Act, 1995, the jurisdiction provision was not amended. That too, as the word ‘Court of Session’ was not mentioned in these both Acts under new amendments under the Acts 17 of 2020 and 18 of 2020, the theory that Magistrate has no jurisdiction to try excise offences cannot be accepted.

A close scrutiny of the penal provisions i.e., section 34 and other allied sections in the new amended provisions (Act No. 17 of 2020) of the Andhra Pradesh Excise Act, 1968, and sections 8-A, and 8-B of the A.P. Prohibition Act, 1995 (Act No. 18 of 2020) etc, it is clear that the punishment was extended in respect of those offences. Although punishment was extended, jurisdictional provision was not inserted in these both Acts. Nowhere it is stated that these excise offences are to be tried in the Court of Session, a fortiori, Section 62 of the A.P.Excise Act was not amended.

Of course, in section 8 of A.P. Prohibition Act, 1995, (i) in clause (b), in sub-section (I), for the words ‘five years’, the words ‘eight years’ are inserted. (ii) In clause (e), for the words ‘five years’, the words ‘eight years’ are inserted; and that under new section 8-A of A.P. Prohibition Act, 1995, whoever in contravention of Section 7-B of the Act indulges in the manufacture or storage of illicit distilled alcohol liquor shall be punished with imprisonment for a term which shall not be less than three years but which may extend upto eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence.

But, in these both Acts, the jurisdictional provision was not amended and it remained as it is, except enhancing the punishments as noted above. See. Acts 17 of 2020 and 18 of 2020. As the procedure for the trial of excise offences was not amended, only Judicial Magistrate has jurisdiction to entertain bail applications, remand and trial of these offences but not the court of session.

Section 4 : Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 : Saving Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

On going through the aforesaid provisions of The Code Criminal Procedure , the following things are crystal clear :-

Sub- Section (1) of Section 4 provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the said Code.

Sub-Section (2) of Section 4 provides that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the manner or place of investigation, inquiry or trial of such offences.

According to Section 5 of Cr.P.C., the procedure provided under the Special Act shall prevail over the general procedure provided under The Code of Criminal Procedure.

Schedules I and II of the Cr.P.C:–

In case of any doubt crept in the mind as to jurisdictional aspect, we have to refer to schedules I and II of the Code of Criminal Procedure,1973 which applicable to both general laws and special laws besides sections 4, 5, and 29 of the Code,1973. As I discussed above, Sub-Section (2) of Section 4 of Cr.P.C provides that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the manner or place of investigation, inquiry or trial of such offences, a fortiori, under section 5 of Cr.P.C, the procedure provided under the Special Act shall prevail over the general procedure provided under the Code of Criminal Procedure.

Schedule I of Cr.P.C applies to General Laws whereas Schedule II of Cr.P.C applies to other laws. It makes so clear that all the offences under other laws should be tried as per the provisions of schedule II of the Code of Criminal Procedure,1973. After understanding the substance of these provisions, it is very clear that inasmuch as there is no special procedure is prescribed, the procedure prescribed in General Laws should be followed applying Schedule – I of the Code of Criminal Procedure,1973.

Judicial Magistrate Court is competent to try Excise offences:

Curiously enough, it is significant to note that although punishments were enhanced under the new amendment Acts (Act No. 17 of 2020 of A.P.Excise Act,1968 and Act. No. 18 of 2020 of A.P. Prohibition Act,1995, there is no specific provision in these both Acts that these excise offences should be tried by the Court of Sessions, a fortiori, section 62 of AP. Excise Act,1968 (which is now not amended) confers power to Magistrate to impose enhanced punishment i.e., from one year to eight years, however, it does not mean that these offences must exclusively tried by the Court of Sessions. The reason is such that the court which tries the offence has discretion to impose enhanced punishment and it, thus, totally differs section 29 of the Cr.P.C. When these both Acts did not specifically incorporate any provision that these excise offences should be tried in the Court of Session, it is to be understood that the Judicial Magistrate Court is competent to try these excises offences in view of sections 4, 5 and Schedule – II of the Code of Criminal Procedure, 1973. See. the ratio laid down in R.Venkata krishnan Vs. Central Bureau of Investigation, 2010 (1) SCJ 142.

Conclusion:

As I discussed supra, Section 62 of the A.P. Excise Act, 1968 was not amended and this provision confers power to Judicial Magistrate to impose punishment from one year to eight years in the excises offences as incorporated in the recent amendments in those both Acts. In such a case, the procedure under section 29 of Cr.P.C is different to that of the procedure under section 62 of A.P. Excise Act, 1973 and so Schedule -I of Cr.P..C cannot be applied to know triability of these excises offences. In my considered view, it is thus clear that Schedule -II of Cr.P.C applies. As there is no specific provision in the both Acts that Court of Sessions has to try these excise offences, in view of sections 4 and 5 and Schedule – II of Cr.P.C, only Judicial Magistrate Court has jurisdiction to entertain bail applications, remands and trial of excise offence, despite punishment is enhanced under the Acts of 17 of 2020 and 18 of 2020.