HARBHAJJAN SAO Vs. KING-EMPEROR

JUDGEMENT

(1.) This rule has been obtained on the grounds, two of which relate to the legality of the search made by the excise officer and the third to the reception in evidence of an alleged confession made by the accused petitioner. The case for the prosecution is that the petitioner lived in premises No. 57/2 Baloram Ghose's Lane. On receipt of certain information the Excise Sub-Inspector raided the house and found in two rooms excisable articles such as French liquor and cocaine. He held the search in the presence of three witnesses two of whom have been examined in the ease. These witnesses deny that they were present during the whole search or that certain articles said to have been found in the different places were found in those places in their presence. The learned Presidency Magistrate has suspected the veracity of these witnesses and has convicted the petitioner for an offence under Section 46 of the Bengal Excise Act (V of 1909), and sentenced him to three months rigorous imprisonment. The Magistrate in his explanation has submitted that he did not rely either upon the search or upon the confession of the petitioner, but the articles were found in the premises which was for the time being in possession of the petitioner and under Section 47 of the Excise Act the petitioner having failed to account for such possession he was convicted as aforesaid.

(2.) Now with regard to the grounds upon which this rule has been issued, as to the search not having been in accordance with Secs.102 and 103, Criminal P.C., it is contended on behalf of the Crown that these sections do not apply to the search made under the Excise Act. We think that there is a great deal to force in this contention. Section 1, Cluase (2), Criminal P.C., says that nothing in the Code shall affect any special or local law now in force, or any special jurisdiction or power conferred. Section 5(2), says all offences under any other law (other than the Indian Penal Code) shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into etc, etc. In view of these provisions, if we find that there is a special provision in the Excise Act, relating to search made under the Act, it is clear that the provisions of Secs.102 and 103 do not apply to searches under the Excise Act.

(3.) In the first place, the search under the Excise Act can be made by persons other than police officers. Chap. IX of the Excise Act details the powers of different persons to make the search. It enables an officer or person empowered under the Excise Act to inspect and search any persons or any vessel, vehicle, etc., in which he may reasonably suspect; any excisable articles to be. Then again the collector or any excise officer may institute a search without a warrant in emergent cases and for that purpose enter or search any place by day or night and may seize anything found therein which he has reason to believe to be liable to confiscation under the Act.