PEERU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE Preventive Sub-Inspector, Excise, Pokharlal and the Excise Inspector Bhilwara, Banwarilal, while on patrolling duty, in the morning of March 2 1966, checked the accused Peeru, who was going towards Kankroli from the village Potlan. THE Excise officials recovered opium, weighing 1 Kg. 650 grams in a plastic bag tied to the waist of Peeru. THE opium was seized by the Excise party under memo Ex. P. 1. Sample weighing 30 grms. was taken and duly sealed. A written report Ex. P. 2 of this happening was given by the Preventive Sub-Inspector Opium to the Station House Officer, Gangapur, the same day at 4 p. m. THE seized article and the accused were also produced before him. THE S. H. O. registered a case and started investigation. Sealed sample was sent to the Chemical Examiner, Jaipur, for chemical examination with constable Bheru Giri, P. W. 2. THE Chemical Examiner sent his opinion (Ex. P. 7) that the sample was found to be of opium. Its morphine content was 1 25%. After the investigation was concluded, a challan was put up in the court of Munsif Magistrate, Gangapur, against the accused Peeru to face trial under sec. 9/4 of the Opium Act. THE accused denied to have committed any offence. In support of its case, the prosecution examined 6 witnesses. In his statement, recorded under sec. 342, Cr. P. C , the accused stated that on the date of the incident the police was pursuing a certain person, and in the course of that follow-up he was forcibly arrested and was taken to the warehouse, Sahadan. THE police also foisted a bag on him containing opium. Prior to that he was not having any opium with him. He examined Ramlal D. W. 1, and Kasim Khan, D. W. 2. Eventually the trial court, by its judgment dated January 31, 1968, convicted the accused under sec. 9/4 of the Opium Act, 1878, and sentenced him to nine months' rigorous imprisonment and to pay a fine of Rs. 200/-, in default to further suffer rigorous imprisonment for two months. THE accused took an appeal against that judgment in the court of learned Sessions Judge, Bhilwara. THE appellate court maintained the substantive sentence to six months' rigorous imprisonment. THE sentence of fine was, however, kept undisturbed.

(2.) AGGRIEVED against the above judgment, the present revision application has been filed on behalf of the accused Peeru. The only point raised by learned counsel for the petitioner is that before the accused was searched by the Excise Inspector, Banwarilal and the Preventive Sub-Inspector Pokharlal, P. W. 3, it was incumbent upon them to record in writing the grounds of their belief and specify in such writing, so far as possible, the thing for which the search was to be made in accordance with the provisions of sec. 165, Cr. P. C. In this case, the learned counsel adds, there is no evidence whether the Excise Officials had reasonable grounds for believing that anything necessary for the purposes of investigation could be found with the accused. The Excise officials were bound to record in writing the reasons of their belief but such a writing is not forthcoming. Therefore, the search made by the Excise Officials is illegal and it vitiates the whole proceeding. Learned Deputy Government Advocate, on the other hand, urged that no specific question was put to the prosecution witnesses in the course of their cross examination whether they entertained reasonable belief in regard to the possession of the opium and whether they recorded in writing the grounds of their belief. In the absence of such question, the legitimate presumption would be that the official act was done in a regular manner and should be presumed to have been rightly done. Sub-sec. (1) and (5) of sec. 165, Cr. P. C. reads as under : " (1) Where an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing so far as possible, the thing for which search is to be made search, or cause search to be made, for such thing in any place within the limits of such station. (5) Copies of any record made under sub-sec. (1) sub-sec. (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate : Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. " Sec. 165, Cr. P. C. , provides an essential safe-guard for searches to be carried out by the police. Sec. 165, was enacted as an exception to the general law for searches, as it was recognized that in certain exceptional exigencies it was necessary to empower responsible police officers to carry out searches without first applying to the court for authority. With a view to check the abuse of power, Legislature provided special safe guard laid down that the reasons for the exercise of the emergency use of the powers must be recorded in writing and further that the copy thereof should be sent to the nearest Magistrate forthwith. The Legislature by enacting sec. 165 (5), Cr. P. C. , intended that in all cases reasons for the searches should be recorded and sent to the nearest Magistrate before the search is carried out. The provisions, contained in sub-sec. (5) of sec. 165, Cr. P. C, are, beyond doubt, of an imperative nature. For this proposition of law, support is sought from Emperor vs. Mohammad Shah (l ). In that case it has been observed that if reasons are not recorded prior to search, the search is without jurisdiction and bad in law. Likewise in State vs. Rehman (2), it has been observed that if there is no evidence to suggest that the reasons were recorded before the Excise Officer proceeded to take the search, the search could not be held to be in accordance with law and if the accused resisted the search, no offence under sec. 353, could be brought home to the accused. The above case went upto the Supreme Court (State vs. Rehman) (3) and His Lordship Subba Rao, J. , speaking for the Court, observed that the provisions of sec. 165, Cr. P. C. , must be followed in the matter of searches. The recording of reasons is important specially in the matter of search, and to ignore it is to ignore material part governing searches. If that is ignored, it cannot be said that the search is carried out in accordance with the provisions of the Criminal Procedure Code. It would in fact be a search made in contravention of the provisions of the Code.