GULZAR SINGH Vs. THE STATE

JUDGEMENT

(1.) THE petitioner Gulzar Singh has challenged his conviction under section 167(81) of the Sea Customs Act and also the sentence of rigorous imprisonment of six months thereunder and subsequently reduced to four months in appeal by the learned Sessions Judge of Amritsar.

(2.) BOTH the petitioner and Ajaib Singh were prosecuted for having been found in possession of unauthorised gold. The raiding party was organised by P.W.1. Ujagar Singh, Inspector of Police, who associated with him Prem Singh, P.W.2, and N.N. Prashar, Deputy Superintendent Customs, P.W.3. The petitioner and his associate Ajaib Singh were found by the nakabandi party on Verka Road near Jethuwal minor at about 8 P.M. on 2nd of August, 1958. When they were challenged, Ajaib Singh actually fired a shot from his revolver. The petitioner and Ajaib Singh were apprehended and on a search gold bearing foreign marks weighing 69 tolas; 5 mashas and 3 rattis, was recovered.

(3.) IT has been contended by Mr. Bhalla, for the petitioner, that the mandatory provisions of section 165 of the Code of Criminal Procedure were not observed by P.W. Ujagar Singh. It is a requirement of this provision that a police officer before making a search has to record in writing the grounds of his belief that it is necessary. Admittedly no search record was made by the police officer in this case. As held by a Division Bench authority of the Lahore High Court (Marten and Bhandari JJ.) in Emperor v. Mohmmad Shah, A.I.R. 1946 Lah. 456, the provisions of section 165 of the Code of Criminal Procedure are mandatory and must be carried out fully, or as nearly as they can be in the exigencies and circumstances of each case. The question remains whether the violation of this mandatory provision is curable under the provisions of section 537 of the Code of Criminal Procedure. The evidence of recovery has been found to be trustworthy by the trial Magistrate and also by the lower appellate Court, and I have no reason to reach a contrary conclusion. The recovery has been touched by a Responsible officer of the Customs Department and a member of the public, and I have no reason to doubt that the neglect of the investigating officer in recording the reasons required of him under section 165 has not resulted in any failure or miscarriage of justice. Under section 537 of the Code of Criminal Procedure, even if there is an illegality the High Court is not required to interfere except in cases where failure of justice has resulted therefrom. As observed by Ramaswami J. in re. T. Subramania Achari, A.I.R. 1955 Mad 129. in his conclusion at page 135: -