STATE OF RAJASTHAN Vs. REHMAN

JUDGEMENT

(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 Session 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 Dy. 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.