EMPEROR Vs. THAVER ISSAJI BOREE

JUDGEMENT

(1.) The petitioner has been convicted by the Chief Presidency Magistrate of three offences, two under Section 353 of the Indian Penal Code, in that the assaulted two public servants, who are Abkara Officers, in order to prevent them from lawfully discharging their duty (sic) as duly as such servants and one under Section 186 of the same Code in that he voluntarily obstructed one of the said plainly (sic) servants in the lawful discharge of his public function

(2.) The facts (sic) found by the Magistrate on which this conviction is founded and which we receipt are shortly these. Sub-Inspector Munsin And Khaine (sic) of the Abkari Department ordered a Customs Constable named Paramesh Ajodhia to search a man who had a red handkerchief (sic) in his and who was found in a street, because the chaught the nam was in possession. of cocaine without licence. The petitioner came up just at that moment in a treating manner (Section) and asked the Constable what he meant by searching this (the petitioner s) man, as he called him. The Constable aboved him his helds (sic) and test the petitioner then he because as the Customs Department. The petitioner thereupon give him a push with his hand and said to the Constable: " cannot search him." The Sub-Inspector, who witnessed all this, then went forward and warned the petitioner that he should not prevent a Government servant from discharging his duty, that he himself was a Sub Inspector in the Excise Department, and that he would search the man himself, as he had lawful authority in that behalf. He raised his sleeves with a view to search the man. The petitioner there upon gave the Sub-Inspector a blew with a clenched fist on his chest, shoved him, and said "Soover, get away" The Sub-Inspector was about to fall but recovered his balance. In the meantime, taking advantage of this seafile, the man whom the Sub-Inspector wished to search abseconded with the result that these officers of the Abkari Department were not able to discharge their lawful duty, which they reasonably believed they were bound to perform in regard to that person under the provisions of the Abkari Act.

(3.) It is contended before us, in the first place, that the officers in question were not acting in the discharge of a lawful duty, as public servants, because, according to Section 38 of the Bombay Abkari Act, all searches under Section 37 of that Act, shall be made in accordance with the provisions of the Code of Criminal Procedure, and that no search could be made of any person, by any public officer, acting under law, without previously calling a panch and conducting a search in the presence of that panch. To that the simple answer is that there is no provision in the Code of Criminal Procedure which requires that a panch should be called in the case of the search of a person.