Dorik Sah vs The State of Bihar

S. Anwar Ahmad, J.—The petitioner stands convicted for an offence u/s 47 (a) of the Bihar and Orissa Excise Act (hereinafter referred to as ''the Act''V. and sentenced to pay a fine of Rs. 300/-. in default to undergo rigorous imprisonment for three months.

The case of the prosecution, in short, is that on the 17th July. 1966. at about 3 p.m.. the Sub-Inspector of Excise (P. W. 1) raided the house of the petitioner and recovered 933 grams of non-dutv paid eania 1 kilogram eania. 300 crams of wild bhang and some weights etc. A seizure list of the articles seized was dulv signed bv witnesses and the accused fthe petitioner). The defence of the petitioner at the trial was of innocence and false implication.

The learned Assistant Sessions Judge in agreement with the Munsiff-Magistrate found on scrutiny of the evidence on the record that the articles included in the search list were recovered from the possession of the petitioner $nd upheld the conviction and the sentence of the petitioner as above. Hence, this revision.

Mr. Prem Shanker Sahay. learned counsel appearing for the petitioner verv rightly did not challenge the finding of fact, but raised two r>oints in support of the application. His first contention was that one of the search witnesses (Sidique) was not the resident of Singheshwar Asthan where the search was made, but he was resident of about four miles awav from that place. But even if so. the non-compliance of the provision of Section 103 of the Code of Criminal Procedure can, at best, be said to foe a case of irregularity, which cannot be challenged after the conviction has been recorded in absence of .prejudice to the oetitioner. There is nothing on the record to show that anv preiudice has been caused to him. The other submission was that Section 74 of the Act was not complied with. The Section runs as follows:

Power to search without a warrant.-

Whenever anv Excise Officer not below such rank as the State Government may, bv notification, prescribe, has reason to believe that an offence punishable u/s 47. Section 49., Section 55 or Section 56, has been, is being, ''Or is likely to be committed or abetted, nd that a search-warrant cannot be obtained ''without affording the offender an opportunity of escaping or of concealing evidence of the offence.

he may, after recording: the grounds of his belief, at any time bv dav or niaht enter and search any place, and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

may detain and search, and if he thinks proper, arrest, anv person found in such place whom he has reason to believe to have committed or abetted anv such offence as aforesaid.

In support of the submission reliance has been placed on the cases reported in 1963 BLJR 671 . (Pairoo Tatwa v. State!: The State of Rajasthan Vs. Rehman, and Radhakishan Vs. State of U.P., .

The point for determination in the case of 1963 BLJR 671 (supra) was as to whether there was non-compliance of Section 74 of the Act. as the officer concerned had not recorded reasons. Whether the failure to comply with the provisions of Section 74 of the Act would amount to an illegality, following the decision in the case of The State of Rajasthan Vs. Rehman, , it was held that non-compliance of the provisions of Section 74 of the Act will not amount to any illegality, but "failure to do so without anv sufficient explanation mav give a valid -jurisdiction to the person searched to obstruct such a search even by causing such assault'' to the officer as is necessary to protect himself". The provision of Section 74 of the Act and of Section 165, Criminal P. C. are pari materia. The effect of non-compliance of Section 165 was considered bv their Lordships of the Supreme Court in the case of Radhakishan Vs. State of U.P., . In the words of their Lordships�

... So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contra- , yened the search could be resisted bv the person whose premises are sought to be searched. It mav also be that because of the illegality of the search the Court mav be inclined to examine carefully the evidence regarding seizure. But beyond these two consequences no further consequence ensues....

It is thug clear that non-compliance ol Section 74 of the Act does not amount to any illegality so as to make the convie-tions meted out to the petitioner either unenforceable or without iurisdictiMi. Thus the conviction of the petitioner an this ground cannot bei set aside. It is. accordingly, affirmed. I would/, however. reduce the sentence of the petitioner to � fine of Rs. 200/- (two hundred) onlv, in default to undergo rigorous imprisonment for two months.

In the result, the application is dismissed subject to the modification in the sentence of the petitioner, as indfa cated above.