ABDUL HAFIZ KHAN Vs. EMPEROR

JUDGEMENT

(1.) The accused Abdul Hafiz Khan was found in possession of one ounce of cocaine lying in a trunk inside his house. He has been convicted under Section 60 (a) of the United Provinces Excise Act and sentenced to rigorous imprisonment for 8 months and a fine of Rs. 500. It appears that the Excise Inspector received information that certain men had come from Rampur and were engaged in selling cocaine at Cawnpore. The accused is a resident of Rampur and is now living at Cawnpore. When the Excise Inspector received the above information, he arranged that 50 ounces of cocaine should be purchased at Rs. 65 per ounce by the informer. He had completed the arrangement for its purchase and was trying to arrange for she price when on the 19 April, he received further information that one of his informers had divulged that information to the smugglers and that they wore leaving the shop on the Latouche Road which was in their occupation. He, therefore, hurried for the house and the shop occupied by the accused without waiting to obtain a search warrant from the Collector under Section 53 of the Excise Act. The shop was found closed. It was opened but nothing excisable was found in it. The Excise Inspector and the constable who accompanied him then went to the house of the accused accompanied by two search witnesses, one of whom was a neighbour keeping a leather shop in an adjoining house and the other was the Excise Inspector's own tonga driver. On a search being made in the house the packet containing an ounce of cocaine was found in a steel trunk which also contained clothes and jewellery. Both the Courts below accepted the evidence of the Excise Inspector and the two search witnesses and convicted the accused.

(2.) The contention here is that the search was illegal because there was ample time for the Excise Inspector to have obtained a warrant from the Collector before making the search, and to have got two search witnesses from the locality to accompany him when he went inside the house to make the search. Section 53 of the United Provinces Excise Act provides that where a Collector or an Officer of the Excise Department, not below such rank as the Local Government may prescribe or a police officer not below the rank of an officer in charge of a police station has reason to believe that an offence punishable under certain sections of the Excise Act is being or likely to be committed in a certain place and that a search warrant cannot be obtained without affording the offender an apportunity of escape or of concealing evidence of the offence, he may at any time by day or night enter and search such place, provided that any officer, other than a Collector, taking action under this subsection shall, before entering such place, record the grounds of his belief as aforesaid.

(3.) The learned Sessions Judge had rightly pointed out that even if the Excise Inspector had no opportunity of obtaining a warrant from the Collector and thought that any delay would afford the offender an opportunity of escape or of concealing evidence of the offence, it was his duty before proceeding to make the search to record the grounds of his belief that an offence of the kind mentioned was being or likely to be committed and that an immediate search was necessary. The Excise Inspector does not appear to have recorded any proceeding showing the grounds of such belief; and that was a serious irregularity which but for the clear evidence adduced in this case and accepted by the Courts below might have seriously affected the situation. The object of the provision is that searches should not be lightly carried out on the strength of a suspicion formed without adequate basis and that there should be some guarantee that the information received had been independently examined and found to be reliable and that a search was necessary in the public interest. The learned Sessions Judge thinks that there was ample opportunity in the present case for the Excise Inspector to have obtained a warrant, but even if that was so, the irregularity in the proceedings leading to the search would not mitigate the offence or operate as a bar to the conviction of the accused as satisfactory evidence of an excisable article having been found in his house or possession is forthcoming. As pointed out in Emperor V/s. Allahabad Khan (1913) 35 All 358 and Emperor V/s. Saiyid Ahamad (1913) 35 All 575 the absence of the search warrant does not, render the subsequent conviction of the person found in possession of an excisable article on such search illegal. It is also urged that the provisions of Section 103, Criminal Procedure Code, were imperative and that the search was illegal because the Excise Inspector and the police constable who accompanied him did not take two respectable inhabitants of the locality with them when they went to search the house. It is undoubtedly important that an officer making a search should comply with these provisions; for the credibility of his story may in many cases depend an the support it might receive from the persons accompanying him in search. But if for any reason the officer making the search is unable to get two or more respectable inhabitants of the locality and a search is effected in the presence of one or more men available at the time leading to the discovery of an excisable article, the accused who is found in possession of that article can all the same be convicted if the Court is satisfied from the evidence that an offence has bean committed. In a case where a search had been carried on in disregard of the provisions of Secs.25 and 30 of the Arms Act it was held that though the search was illegal, the persons found in possession of the arms could still be convicted: vide Emperor V/s. Kutru . There is no reason in these circumstances for interfering with the conviction. The sentence is not excessive. The application is dismissed.