Durairaj Nadar vs The Assistant Collector, Tuticorin and Another

Palaniswamy, J.—On 4th September 1969, the petitioner, Durairaj Nadar, who owns certain lands in Chettipathu village, Tiruchendur

Taluk, Tirunelveli District was served with a requisition under Clause 4 of the Madras paddy and Rice (Declaration and Requisitioning of Stocks)

Order, 1967 (hereinafter referred to as the order) requiring him to sell 44.240 quintals of paddy to one Shanmughanatha Rice Mill pro curing

agent. The petitioner did not comply with this order On 9th September 1969, the Tahsildar, Tiruchendur, the second respondent entered into the

petitioner''s premises and seized 55 bags of paddy and issued a receipt therefore. The petitioner has filed this writ petition for the issue of a writ

directing the return of the said 55 bags of paddy seized from him. The first respondent is the Assistant Collector of Tuticorin who issued the

requisition order.

Clause 5 (1) (a) of the Order defines ''competent officer'' meaning any officer of the Revenue or Civil Supplies Department not below the rank

of Revenue Divisional Officer or District Supply Officer or any officer of the police Department not below the rank of Deputy Superintendent of

Police. Clause 5 (1) (b) defines ''Inspecting officer'' as an officer of the Revenue or Civil Supplies Department not below the rank of Tahsildar or

any officer of the police Department not below the rank of Inspector. Sub-clause (2) of this clause confers certain powers upon the competent

officer. Sub-clause (3) confers certain powers on the inspecting officer. Sub-clause (7) says that the provisions of Sections 102 and 103 of the

Code of Criminal Procedure, 1898 relating to search and seizure shall so far as may be apply to searches and seizures under this clause.

The contention of the Petitioner is three fold;

(i) What the second respondent, the inspecting officer before effecting search and seizure, did not comply with Sub-clause (3) of Cl. 5;

(ii) That in effecting search and seizure, the second respondent did not comply with Cl. (7) of Clause 5;

(iii) That the requisition order not having fixed any data within which paddy should be measured the petitioner was entitled to reasonable terms and

to file an appeal under Cl. 6 within 10 days from the date of receipt of the order and that the petitioner having received the order on 4th

September, 1969 had time till 14th September, 1969 for filing an appeal and that the seizure effected en 9th September, 1969, that is even before

the expiry of appeal time is illegal.

The respondents have filed separate counter affidavits alleging that the petitioner failed to submit the necessary declaration under the order, that

the village officers reported that the petitioner was arranging to remove the stocks stealthily in spite of the fact that the village officers and two

police constables had been posted to watch and that as the petitioner refused to measure the required paddy to the procuring agent, the second

respondent decided to take action by using the powers under Cl. 5 (2) and seized the paddy on 9th September, 1969 after observing the

formalities and preparing necessary attakshies. It is further contended on behalf of the respondents that having regard to the information received

that the petitioner was stealthily removing the stock the second respondent had to take immediate action and that he did not violate any of the

provisions of the order.

The first complaint of the petitioner is that in effecting the search and seizure, the second respondent, the inspecting officer, failed to comply with

the relevant provisions of the order. For a proper appreciation of this contention it is necessary to note the relevant provisions of the order, Sub-

Cl. (2) of Cl. 5 in so far as it is material for the purpose of this case, runs as follows:

If any competent officer has reason to believe that any contravention of this order has been committed or is being committed or is about to be

committed he may himself or he any authorize any Inspecting officer:

(a) . . .

(b) . . .

(c) . . .

(d) enter and search any premises or place;

(e) seize the stock of paddy or rice in respect of which the competent officer has reason to believe that any provision of this order has been is

being or about to be, contravened along with the packages, covering of receptacles in which such Paddy or rice is found...and thereafter take or

otherwise the taking or all measures necessary for securing the production of the packages, coverings, receptacles... so seized in a court and for

their safe custody pending such production. "" (The proviso 1 is omitted as it is not relevant)Sub-Cl. (3) of Cl. 5 in so far as it is relevant reads as

follows:

Notwithstanding anything contained in Sub-clause (2) where the inspecting officer has reason to believe that there are circumstances under which

the delay occasioned by the obtaining of authorization from any competent officer might result in any such books or any stock or paddy or rice or

each packages, coverings receptacles...being removed, cancelled or destroyed, the inspecting officer may, after recording reasons in writing

exercise all or any of the powers conferred by Items (a) to (e)of Sub-clause (2) without any such authorization from the competent officer and such

record of reasons shall forthwith be forwarded by the inspecting officer to the competent officer.

The proviso which is not relevant is committed.

It would be seen from the foregoing provisions that it is the competent officer who is primarily entitled to take action under sub Clause (2) or

Clause 5. But power is also conferred open the inspecting officer under Clause 3 provided the requirements enumerated therein are satisfied. The

requirements are-

(i) Existence of circumstances under which the delay that may occur in obtaining authorization may result in the paddy or rice being removed.

(ii) Prior recording of reasons in writing for taking action hereunder; and

(iii) Forwarding of the record of reasons to the competent officer. The complaint of the Petitioner is that the second respondent did not comply

with these requirements. This contention is vaguely met by the second Respondent in his counter affidavit wherein it is badly alleged that the stock

was seized after observing all formalities end preparing necessary athakshi and that an urgent report was submitted to the Assistant Collector on

9th September 1969 and action was ratified by the Assistant Collector. In referring to the aspect of the matter both the first Respondent, Assistant

Collector, Tuticorin. who issued the requisition order, and the second Respondent, who effected the seizure, have referred to Clause 5 (2), as if it

enables the second Respondent to take the action which he did. The Assistant Government Pleader wanted me to held that reference to Clause 5

(2) is a mistake for reference to Clause 5 (3). But the same mistake is found in the communication sent by the Second Respondent to the first

respondent on 9th September 1969 in which also he said that he was taking action u/s 5(2). Let as assume for the sake of argument that it is a

mistake and see whether the second Respondent compiled with the requirements. No doubt, he had information from the village officers that the

petitioner was attempting to remove stealthily the stock of paddy which was required to be delivered. That information no doubt was sufficient

justification for taking immediate action without waiting for a requisition from the first Respondent. But sub Clause (3) of Clause 5 clearly says that

only after recording the reasons in writing the second Respondent could take necessary action. That means, the recording of reasons should

precede the taking of action. As the counter affidavit filed by the second Respondent is vague on this aspect, I called the Assistant Government

Pleader to produce the relevant file and i looked into it. Nowhere did the second Respondent record his reasons before taking action. All that we

find is a report by the second respondent stating that he was making use of the powers under Clause 5 (2). He requested that his action may be

ratified. The Assistant Government Pleader wanted me to infer that this was sufficient compliance with the requirements of sub Clause (3) of

Clause 5. I am afraid this cannot be accepted. The second respondent could have written the letter that, is how the letter reads-only after effecting

the seizure and it was in these circumstances that he sought ratification of his action. What he was required to do fast-forward the record of

reasons to the competent officer. Therefore, from the papers produced before me, it is not possible to hold that the second Respondent recorded

his reasons is writing and then took action. On the other hand, the only possible inference to be drawn from the records is that the effected the

seizure first and then informed the first Respondent and sought ratification of his action. This is clearly in violation of Sub-clause (3) of Clause 5.

The non-compliance of that provision renders the seizure illegal.

The next contention of the petitioner is that the second respondent failed to comply with Sub-clause ( ) of Clause 5 which requires the

compliance of Sections 102 and 103 of the Code of Criminal Procedure, relating to search and seizure, Section 102 of the Code of Criminal

Procedure imposes a liability upon persons in charge of any closed place to allow search if that place is liable to be searched or inspected. Such a

person should allow the person executing the warrant free ingress there to and afford all reasonable facilities for the search, Section 103 lays down

the procedure to be followed before search is made. The officer executing the warrant should call upon two or more respectable inhabitants of the

locality in which the place to be searched is situate to attend and witness the search. The search should be made in their presence and a list of all

things seized in the course of such search should be prepared. Any person who without reasonable cause, refuses or neglects to attend and witness

the search when called upon to do so by an order in writing shall be deemed to have committed an offence punishable u/s 187 of the Indian Penal

Code. In this case, the second respondent did not comply with these requirements. He was not armed with necessary warrant to effect the search.

The Assistant Government Pleader contended that having in regard to the urgency in effecting the seizure in order to prevent the removal of stock

paddy, the second respondent was justified in taking action without a warrant. He contended that Sub-clause (3) of Clause 5 already referred to is

similar to S. of the Code of Criminal Procedure that u/s 165, a Police Officer, making an investigation can, after recording in writing the ground of

his belief for effecting the search, effect a search without a warrant and that similar consider rations may be applied to Sub-clause (3) of Clause 5

of the Order. No doubt u/s 165 of the Code of Criminal Procedure, If a police officer making an investigation has reasonable grounds to believe

that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within

the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained

without undue delay, he may after recording in writing the grounds of his belief and specifying In such writing so far as possible, the thing for which

search is to be made, search or cause search to be made for such thing is any place within the lights of such station. This section also enjoins a duty

upon the investigating officer to record in writing the grounds of his belief before taking action. But Section 165 of the Code of Criminal procedure

is not made applicable to the search and seizure under the order is question. The competent officer or the inspecting officer, while effecting the

search and seizure should comply with Section 102 and 103 of the Code of Criminal procedure, which require a warrant for the purpose.

Inasmuch as Section 165 is not available for being invoked, a warrant is necessary before effecting the search and seizure. Admittedly, in the

Instant case, the second respondent had no warrant. Apart from not having a warrant, the second respondent did not comply with Section 103 of

the Code of Criminal Procedure; on this ground also, the seizure has to be held to be Illegal.

The third and last contention of the petitioner is that, though he was entitled to file an appeal under Clause 5 within 10 days from the date of

receipt of the requisition order, the seizure was effected before the expiry of that period and that on account of such seizure his rights of appeal

became illusory and was thereby defeated. As already noticed, the petitioner received the requisition order on 4th August 1969 and the search

was effected on 9th September 1969. It is there-fore contended that inasmuch as the search was made even before he could file an appeal the

search is illegal. The requisition order did not specify any time limit within which the petitioner should measure the paddy to the procuring agent

named therein. This is a defect. The petitioner was entitled to reasonable time to measure the paddy. Such reasonable time cannot be less than 10

days within which he was entitled to file an appeal. The question is whether the seizure effected even during that time is illegal-Clause 5 empowers

the competent officer and inspecting officer to search and seize. But it does not fix any time limit between the date of service of the order under

clause-4 and the date of seizure. The search and seizure could be made if those officers have reason to believe that any contravention of the order

has been committed or is being committed or is about to be committed. It cannot be said that the powers of search and seizure could be exercised

only after any provision of the order is violated. If the concerned officer has reason to believe that any provision is about to be violated or is being

violated he is entitled to take action. Therefore, the fact that the petitioner had 10 days time to prefer an appeal does not mean that the concerned

officers cannot take action before the expiry of the appeal time. The object of search and seizure is to prevent removal of stock in violation of the

requisition order. Even after the seizure is made, it is open to the aggrieved person to file an appeal and seek appropriate directions regaining the

disposal of the commodity. If he succeeds is the appeal he can get back the commodity seized from him. If the concerned authorities were to wait

till the expiry of the appeal time the very purpose for which, provisions have been made for search and seizure would be defeated, therefore, I do

not find any flaw in the seizure having been conducted on 9th September 1969 merely on the ground that, It was effected before the expiry of the

time for filing an appeal.

As I find that the search and seizure were illegal another grounds mentioned already the petitioner is entitled to a direction for the return of the

paddy seized from him. The writ petition is accordingly allowed with costs. If the stock of paddy seized from the petitioner had been disposed of,

the petitioner is entitled to the value thereof. Advocate''s fee Rs. 100/-