NAZIR KHAN Vs. STATE,

JUDGEMENT

(1.) THIS is a reference made by a learned Judge of this Court in a case under the U. P. Opium Smoking Act. Nasir Khan applicant was convicted under Section 13 of the U. P. Opium Smoking Act for being in possession of prepared opium. When the case came up before the learned single Judge he came to the conclusion that as the Excise Inspector had entered the house of Nasir Khan and searched him without any warrant issued by a Magistrate, he therefore contravened the mandatary provisions of Section 19 of the U. P. Opium Smoking Act and he thus felt doubtful whether the whole proceedings were vitiated or not. It was on this question alone that he made a reference to a Divisional Bench and it has come before us today.

(2.) THE point on which the reference has been made is settled by the enactment of Section 19A of the U. P. Opium Smoking Act. This section was probably not placed before the learned single Judge when he made this reference. Section 19A runs as follows : "Whenever the Collector or any officer of the Excise Department authorised in that behalf by the State Government or a police officer not below the rank of an officer in charge of a police station has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in any place and anything necessary for purposes of investigation into the offence may be found in any place within the limits of his territorial jurisdiction and that such a thing cannot, in his opinion be otherwise obtained without undue delay, he may after recording in writing the grounds of his belief search or cause search to be made of any such place - In view of the section quoted above, an Excise Inspector is vested with the power of conducting a search if he feels that by procuring the necessary warrant there would be undue delay and the offender might escape. In other words, if in the opinion of the Excise Inspector there is an emergency, he can without procuring a warrant conduct the search. No exception can be taken to this rule because it is obvious that the procurement of a warrant involves delay and in several cases this delay would defeat the ends of justice if an emergent action is not taken. We are, therefore, of the opinion that in view of Section 19A of the U. P. Opium Smoking Act the Excise Inspector acted within his rights and the search which he conducted cannot be held to be illegal. No doubt there is a condition laid down in Section 19A that if such a search is to be conducted the officer conducting the search should record his reasons. There is no indication that the Excise Inspector in this case made any record of his reasons. The absence of this record will, however, not make the search illegal it will only necessitate a greater scrutiny of the evidence of recovery. In Baijnath v. State, 1956 Cri LJ 449 : (AIR 1956 All 234) (A), it was observed by one of us: "A search under Section 19A of the U. P. Opium Smoking Act made by a Second Officer of a Police Station, though empowered by a notification under Section 10 (2) (o) of the U. P. Excise Act or made without recording grounds for conducting the same in writing is not regular. But both these circumstances are procedural irregularities and they will not vitiate the search, it will only make a Court extremely cautious and critical of the evidence that is placed before it. If the Court after scrutinising the evidence in such a manner still finds that the fact of recovery is proved beyond doubt, it will act upon it and will not ignore the evidence of recovery." We are in agreement with this view and we are of the opinion that the evidence of recovery cannot be thrown overboard merely on the ground that the Excise Inspector did not record his reasons before conducting the search.

(3.) THE counsel for the applicant has raised another contention before us. He has drawn our attention to Section 25 of the U. P. Opium Smoking Act, which runs as follows : "No Magistrate shall take cognisance of an offence punishable under this Act except on the complaint or report of the Collector or an officer of the Excise Department not below the rank of an Excise Inspector." His contention is that no complaint or report was submitted in this case by the Excise Inspector and therefore the Magistrate had no jurisdiction to try this case. In our opinion this contention is not well founded. It cannot be denied that the prosecution in this case was launched by an Excise Inspector. This is also admitted that he submitted a charge -sheet in this case in which the name of the offender, the date of the offence, the articles recovered from the possession of the applicant, the names of witnesses, the section of the U. P. Opium Smoking Act under which in his opinion an offence was committed by the applicant were given. This charge -sheet in our opinion fulfils the requirements of Section 25 of the U. P. Opium Smoking Act, because it is the report of the Excise Inspector. In those cases where the police prosecutes offenders only charge -sheets which are called challans are submitted. These challans are equivalent to complaints filed in other cases. "Complaint" is defined under Section 4 (h) of the Criminal Procedure Code The definition runs as follows : "'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include the report of police officer." It is, therefore, clear that all that is required for a person to bring his allegations under the definition of a complaint is to bring to the notice of a Magistrate either orally or in writing the gist of the illegal act or omission committed by an offender with a view that action may be taken against him. The charge -sheet submitted by the Excise Inspector fulfils this definition. Even if we treat it as a report and not as a complaint, the provisions of Section 25 of the U. P. Opium Smoking Act are complied with and the Magistrate was entitled to take jurisdiction of the case.