Dilawar Beg vs State of M.P.

K. Subbarao, J.—Sub Inspector Joshi, P.W. 16 on receipt of information that illicit distillation of liquor was going on in the houses of the Appellants, Dilawar Beg and Karamat Beg, arranged a raid on their houses on the night of April, 1, 1961. He collected about 30 members of police and drove to the houses of the Appellants in two lorries. On reaching the gate of the houses, the party divided itself into two parties, one party surrounded the houses at the back and the other entered the houses through the gate. In the outer Chowk the said party found 22 drums, of which 8 were full of Lahan and 14 were empty There were also two motor car tubes containing illicit liquor. From the inner Chowk the party noticed four running Bhattis in the Osari and 7 persons, including the 3 Appellants, sitting near and manufacturing liquor. The Appellants, Anwar Beg, Karamat Beg and Dilawar Beg, the first of them armed with a gun and the other two with lathis, went towards the Chowk abusing the police party The Appellants caused injuries to the members of the said police party, namely to P. Ws. 1 and 10 and other constables. The other 4 of the accused ran away to the upper gallery and began to throw stones and bricks on the police party. The police party, after overpowering the three Appellants, apprehended also three of the other persons, who ran away to the upper gallery, but the 4th ran away, though he was also arrested later on. All the accused were put up for trial before the Sessions Judge, Indore, on charges under Sections 307, 147, 332 and 34 of the Indian Penal Code, Section 34 of the Madhya Pradesh Excise Act, 1915, and Section 19 of the Indian Arms Act, 1878. The learned Sessions Judge convicted all the 7 accused under Sections 147 and 332 of the Indian Penal Code and u/s 34 (a) and (f) of the Madhya Pradesh Excise Act and convicted each of them to undergo rigorous imprisonment for periods of one year, one year and six months respectively under each of the said sections; and he also convicted Anwar Beg u/s 19(f) of the Indian Arms Act an I sentenced him to undergo rigorous imprisonment for six months He directed all the sentences to run concurrently. He acquitted them under S 307 of the Indian Penal Code. The accused filed three separate appeals to the High Court which acquitted the accused other than the three Appellants under all the charges and confirmed the convictions and sentences of the Appellants under all the charges and confirmed the convictions and sentences of the Appellants u/s 332 of the Indian Penal Code, and Section 34 (a) and (f) of the M.P. Excise Act and sentenced Anwar Beg u/s 19 (f) of the Indian Arms Act also. It (sic) aside the conviction of the Appellants u/s 147 of the Indian Penal Code. The three convicted accused have preferred the present appeals to the Court against the said judgment of the High Court.

Learned Counsel for the Appellants raised before us the following contention: (1). The trial and conviction of the accused under the said sections were bad, because there was misjoinder of charges. (2). The search of the houses of the Appellants was illegal as it was made in non-compliance with the provisions of Section 52 and Section 54 of the M.P. Excise Act; it was also bad because it did not comply with the provisions of Section 165 of the Code of Criminal Procedure. (3). As the search was illegal, the accused were not guilty u/s 332 of the Indian Penal Code. (4) In any view, the evidence adduced by the prosecution did not bring home the guilt to the accused under any of the sections under which they were charged.

The question of misjoinder of charges had not been raised either before the Sessions Judge or the High Court: it was raised for the first time before us. u/s 537 of the Code of Criminal Procedure, no sentence or order passed by a Court of competent jurisdiction shall be reversed on account of misjoinder of charges unless such error has in fact occasioned the failure of justice; under the Explanation to that section, in determining whether the error has occasioned a failure of justice the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage of the proceedings. In this case not only such objection was not taken at the earliest stage in the proceedings, but also no objection on that score was raised before the High Court. We did not, therefore, permit the Appellants to raise the point for the first time before us in these appeals under Art 136 of the Constitution.

The second argument advanced falls in two parts; (i) the Police Officers had no jurisdiction to make a search of the houses of the accused u/s 54 of the Madhya Pradesh Excise Act; and (ii) the search was made in non-compliance with the provisions of Section 165 of the Code of Criminal Procedure. It may be mentioned that these contentions in the forms raised before us were not advanced in either of the Courts below. Before the learned Sessions Judge it was generally suggested that it was not the duty of a Police Sub-Inspector to lay a raid. The learned Sessions Judge rejected the contention on the ground that the Police Officers were authorised and empowered under the Police Rules and Regulations to arrest without warrant persons committing offences u/s 34 of the Excise Act, and also to carry out searches contemplated u/s 54 thereof. In the High Court no such argument was raised; instead, it was contended there that "the raid was made without any warrant from the Magistrate and in the absence of any reasons why no warrant was taken, the raid would be illegal and, therefore, the Appellant would be justified in assaulting the members of the raiding party," That contention was rejected. We would, therefore, be justified if we did not permit the Appellants to raise this plea before us, But we would prefer to reject the contention on the ground that it is completely devoid of merit.

Under S 2 (7) of the Madhya Pradesh Excise Act "an Excise Officer" is defined to mean any person appointed or invested with powers u/s 7 thereof. u/s 7 thereof, "The State Government may, by notification, for whole or any specified part of the State order that all or any of the powers and duties assigned by or under this Act to any officer appointed under CI, (c) shall be exercised and performed by any servant of the Government, or any other person". The learned Sessions Judge in his judgment said that the Police Officers were empower to carry out searches contemplated by Section 54 of the Excise Act Learned Counsel for the Appellants, apart from questioning the correctness of the statement, was not able to place before us any material to establish that that statement was incorrect Indeed, Regulation 361 of the Central Provinces & Berar Police Regulations shows that in addition to the powers mentioned in Regulation 360, an Officer in charge of a Police station who is not below the rank of a Head Constable can make a search u/s 54 of the Excise Act. Presumably the State Government had issued a notification prescribing that a Police Officer not below the rank of a Head Constable could exercise the powers of an Excise Officer u/s 54 of the Excise Act. We, therefore, rejected this contention.

If a Police Officer was an Excise Officer within the meaning of Section 54 of the Excise Act the mode of search by such an Officer is prescribed by S 54 of the Excise Act. If Section 54 of the said Act governs the search by an Excise Officer functioning u/s 54 of the Act, there is no scope for invoking the general provisions of Section 165 (1) of the Code of Criminal Procedure prescribing the mode of search by a Police Officer. The Police Officer in his capacity as an Excise Officer can function u/s 54 of the Excise Act and not u/s 54 of the Excise Act We, therefore, rejected this contention, this contention either and, therefore, we rejected it. (sic).

If the search was legal, it cannot be disputed that on the facts found the Appellants would be guilty of an offence under S 632 of the Indian Penal Code.

Lastly, the Learned Counsel for the Appellants attempted to argue that the finding of the Courts below to the effect that the Appellants beat the police was not supported by the evidence adduced in the case. The finding is purely one of the fact and we did not, therefore, permit the Appellants to take us through the evidence.

In the result, the appeals fail and are dismissed.