CHANDER PRASAD Vs. EMPEROR

JUDGEMENT

(1.) THE petitioner has been convicted under Secs.353 and 379, Indian Penal Code. Under the former be has been sentenced to two months rigorous imprisonment and under the latter to one month's rigorous imprisonment. THE sentences are to run consecutively. THE convictions and sentences have been upheld in appeal. THE prosecution case is that the petition was suspected by the Excise Sub-Inspector of selling illicit ganja. In order to detect this the Sub- Inspector sent two kahars with six marked pice and instructed them to-buy illicit ganja from the petitioner. THEy did so and brought the ganja to the Sub-Inspector who was keeping a watch at some distance. THEreupon the Sub-Inspector came to the petitioner and wanted to search his house. THE petitioner is then said to have snatched away the ganja and a torch from the Sub-Inspector and to have given him a push. It appears from the judgment of the learned Appellate Court that it was argued before it that the search under the Excise Act could only be made in day and not at night and perhaps Section 74, Excise Act referred to for that purpose. I do not find any such restriction in the section itself and there is no difference between day and night in this respect.

(2.) THE conviction under Section 353, Indian Penal Code, however, cannot be upheld. Under Section 74, Excise Act when an officer has reason to believe that an offence under certain sections of the Act has been committed and he wants to search, he has to record his reason for doing so. In this case it is admitted that no reason was recorded before an attempt to search was made. In the circumstances the Sub-Inspector could not be said to be acting in the exercise of his powers. Section 99 is also not applicable as the Sub Inspector did not act with due care and caution. THE recording of reason before search is provided for both under the Criminal Procedure and under the Excise Act and is intended to protect the liberty of citizens and avoid useless and unjustified1 searches. If an officer before proceeding to search has to record his reason, he will have to apply his mind to the facts and the sufficiency of the information on the basis of which he wants to search. This was the view taken by Dhavle, J. in Gopi Mahto V/s. Emperor 10 Pat. 821 : AIR 1932 Pat. 66 : 136 Ind. Cas 60 : (1932) Cr. Cas. 99 : 33 Cr. LJ 233 : 13 PLT 62 : Ind. Rul. (1932) Pat. 60, and though Macpherson, J. left the question open, he did not dissent from it. I, therefore, set aside the conviction and sentence passed under Section 353, Indian Penal Code. THE conviction under Section 379, Indian Penal Code is upheld, but in lieu of the imprisonment of one month, I sentence the petitioner to the term of imprisonment already undergone by him and in addition sentence him to pay a fine of Rs. 75, and in default of payment of the fine, to suffer two weeks rigorous imprisonment.