1. Obstruction of a search conducted by an excise officer for tobacco under the Central Excise and Salt Act — legality of search without recorded reasons. (Para 2 )
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1959 Supreme(SC) 180
SUPREME COURT OF INDIA
K.Subba Rao : P.B.Gajendragadkar
State Of Rajasthan
Versus
Rehman
Case No. : 39 of 1958
Date of Decision : 10/14/59
Advocates Appeared: Dhebar R.H.
Advocates:
R.H.Dhebar
R.H.Dhebar
Searches conducted under the Central Excise Rules to investigate offences must comply with Section 165 of the Code of Criminal Procedure. Recording the grounds of belief in writing is a mandatory condition; failure to do so renders the search illegal.
Headnote:(A) Central Excise and Salt Act, 1944 - Section 18 - Central Excise Rules - Rule 201 - Code of Criminal Procedure - Section 165 - Search and seizure - Power to search and procedure to be followed - Where a search is conducted to ascertain whether there is a contravention of the Act or Rules, which constitutes an offence, the provisions of Section 165 of the Code, relating to searches by a police officer during the investigation of a cognizable offence, are applicable - Recording of reasons in writing is a mandatory condition and not a mere procedural formality - Failure to record reasons renders the search illegal. (Paras 6, 7, 8)
(B) Indian Penal Code - Section 353 - Obstruction of public servant - If the search conducted by the public servant is illegal due to non-compliance with statutory procedural requirements, obstruction of such search does not constitute an offence. (Paras 2, 9)
Facts of the case:
An authorized officer conducted a search of a premises to find stored tobacco to determine if excise duty had been paid. The search was carried out without recording the reasons in writing as required under the Code of Criminal Procedure. The occupant of the premises obstructed the search, leading to a prosecution for obstructing a public servant. The trial court and High Court acquitted the accused on the ground that the search was illegal.
Findings of Court:
The search conducted by the officer in contravention of the provisions of Section 165 of the Code was illegal.
Issues: Whether the procedure for search prescribed under Section 165 of the Code of Criminal Procedure applies to searches authorized under Rule 201 of the Central Excise Rules, and whether the recording of reasons is a mandatory condition for the legality of the search.
Ratio Decidendi: The court held that since Section 18 of the Act mandates that searches be carried out in accordance with the Code, and since searches under Rule 201 are intended to investigate offences, the stringent conditions of Section 165 of the Code must be followed. The recording of reasons is a necessary condition for the exercise of the power of search; ignoring this step means the search is not carried out in accordance with the law and is therefore illegal.
Result: Appeal dismissed.
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Table of Contents
2. Whether general search procedures under Section 103 CrPC apply or specific investigation procedures under Section 165 CrPC are mandatory for excise searches. (Para 3 )
3. Excise searches under Rule 201 are for investigating offences, making them analogous to police searches under Section 165 CrPC, requiring recorded grounds of belief. (Para 6 , 7 )
4. Searches authorized under Rule 201 of the Central Excise Rules must comply with the mandatory requirements of Section 165 of the Criminal Procedure Code. (Para 7 , 8 )
5. Appeal dismissed; acquittal confirmed. (Para 11 )
6. Which provisions of the Criminal Procedure Code govern searches conducted by authorized officers under Rule 201 of the Central Excise Rules?
Searches under Rule 201 are conducted to ascertain contraventions of the Act, which are offences. Therefore, they are analogous to searches by police officers during investigations of cognizable offences and must follow the provisions of Section 165 of the Criminal Procedure Code. (Para 6 , 7 )
7. Is the recording of reasons for a search under Section 165 CrPC a jurisdictional requirement or a mere procedural formality?
While the power to search is conferred by statute, recording the reasons is a necessary condition for the search to be legal. Ignoring this requirement results in a search conducted in contravention of the Code. (Para 8 )
8. What is the legal effect of conducting a search in contravention of the requirements of Section 165 of the Criminal Procedure Code?
A search conducted in contravention of the provisions of Section 165 of the Code is illegal. (Para 9 )
K.SUBBA RAO, J.
(1) THIS is an appeal by certificate granted by the High court of Judicature for the State of Rajasthan under Art. 134 (1) (c) of the Constitution against its judgment dated 20/9/1957, confirming that of the Munsif-Magistrate, Hinduan, acquitting the appellant of the charge under S. 353 of the Indian Penal Code.
(2) THE material facts lie in a small compass. The Deputy Superintendent of the Central Excise, having his head-quarters at Bharatpur, received information that one Sulled and his son, Rehman, the respondent herein, had cultivated tobacco but had not paid the excise duty payable thereon. On 9/9/1953, the Deputy Superintendent, accompanied by an Inspector of central Excise, a sepoy, a chowkidar and two motbirs, went to the house of Rehman at 2 p.m. with a view to search his house to find out whether he had stored tobacco there. When they declared their intention to do so, the respondent and one Dhamman, it is alleged, obstructed the making of the search; with the result that the Deputy Superintendent fell down and received some injuries. The respondent and Dhamman were prosecuted, and the Munsif-Magistrate, Hinduan, discharged Dhamman but convicted the respondent under S. 353 of the Indian Penal Code and sentenced him to undergo three months rigorous imprisonment. On appeal, the Additional Sessions Judge came to the conclusion that on the material then available the search had not been conducted in accordance with S. 165 of the Criminal Procedure Code and remanded the case for fresh enquiry. On remand, the Munsif-Magistrate found that the search was made by the Deputy Superintendent without recording the reasons as he should under S. 165 of the Criminal Procedure Code and that the respondent in obstructing him from making the illegal search did not commit any offence, and, on that finding, he acquitted the respondent. On appeal, the High Court agreed with the view expressed by the Munsif-Magistrate and confirmed the order of acquittal. The State of Rajasthan preferred the present appeal questioning the correctness of the decision of the High court.
(3) LEARNED counsel for the State raised before us two points: (1) The central Excise and Salt Act (No. 1 of 1944) (hereinafter called "the Act") and the Rules framed thereunder (hereinafter called "the Rules") and the Criminal Procedure Code (hereinafter called "the Code"), maintain a distinction between the power to make a search and the manner of making it, and collate a specified power with a particular procedure. As the Deputy Supdt., of the central Excise, in the present case, exercised his power to make a search only to gather information about the quantity of tobacco stored in the house of the respondent for imposing excise duty on the said article and not to make any investigation with a view to prosecute the respondent, the mode of search prescribed under S, 103 of the Code which applies generally to all searches, has to be followed and not that provided under S. 165 of the Code which applies to a search made by a police officer during the investigation of an offence. (2) Assuming that S. 165 of the Code applies, the said section confers a power or jurisdiction on a police officer to make a search and prescribes the procedure to be followed in making the search. The recording of the reasons relates to jurisdiction and therefore the excise officer, who has already derived his power to make the search under R. 201 of the central Excise Rules need only follow the procedural part of S. 165 of the Code.
(4) THE respondents counsel has not appeared before us.
(5) TO appreciate the contentions of the learned counsel for the appellant it would be convenient at this stage to notice the relevant provisions of the Act, the Rules framed thereunder and the Code.
(6) UNDER S. 18 of the Act, all searches made under the Act or the Rules made thereunder shall be carried out in accordance with the provisions of the Code relating
