STATE Vs. REHMAN

JUDGEMENT

(1.) THIS is an appeal by the State against the order of acquittal of Rehman respondent on a charge under Section 353 of the Indian Penal Code by the munsiff-Magistrate, Hindaun by order of 4th of August, 1956.

(2.) THE case for the prosecution is that Mr. Sri Kishen Ahlawalia Deputy superintendent of Central Excise having head-quarters at Bharatpur went on 7th of September, 1953 to village Kot. He received information that Sullad and his son rehman had cultivated tobacco but had not paid the excise duty thereon. On 9th of September, (1953, he decided to go to the house of Rehman and after 2 P. M. went to his house and asked him to show his tobacco. Rehman replied that he had some tobacco with him but he would not show it. Shri ahluwalia Deputy Superintendent was accompanied by Mr. Nand Kishore Maheshwari, Inspector Central Excise, Ramchand Sepoy, Nopa Chokidar and two-Motbirs Kapurchand and Phulchand. Shri Ahlu-walia decided to take the search of the house of Rehman, but Dhamman and Rehman obstructed the making of the search and pushed aside Ram- chand and Shri Ahluwalia. Shri Ahluwalia fell down and as a result received two injuries, one abrasion and the other a contused wound on his leg. A report was made at the Police Station, Mahuwa on the same day at 6 P. M.

(3.) REHMAN and Dhamman were prosecuted. Dhamman was discharged and rehman was convicted under Section 353, I. P. C. and sentenced to undergo three months rigorous imprisonment by the learned Munsif-Magistrate, Hindaun on 2nd of June, 1953. On appeal the learned Additional Sessions Judge was of opinion that the search had not been proved to have been made in accordance with the provisions of Section 165, Criminal Procedure Code which were applicable in view of Section 18 of the Central Excises and Salt Act (No. 1 of 1944 ). It was pointed out that there was no evidence to show that the officer had recorded his reasons in writing before attempting to search the place. He set aside the conviction and remanded the case for a fresh enquiry. After remand a document Ex. P-5 was produced by Shri Ahluwalia as a record of the reasons before the search was attempted and he was recalled for examination. The learned magistrate did not accept this document to have been drawn up before search and held that the provision of Section 165, Criminal Procedure Code had not been complied with. He accordingly acquitted the accused by his judgment dated 4th of august, 1956.