State by Public Prosecutor vs A. Subramanian Chettiar

Bellie, J.—This revision petition is directed against the judgment of the learned Sessions Judge, Madurai reversing the order of confiscation

by the District Revenue Officer, Madurai. The State is the Revision Petitioner.

On 8.9.1981, at about 4.45 p.m., the Inspector of Police, Civil Sapplies, C.I.D. Madurai, inspected the mill of A. Subramania Chettiar, the

respondent herein, and found a shortage of 29.25 quintals of raw paddy accounts and excess of 17.81 quintal of boiled rice and excess of 47.52

quintal of boiled paddy than the actual accounts. Therefore he seized the said quantities of the paddy and rice, and submitted a report to the

Collector complaining that the respondent has contravened the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, and for confliction

of the said paddy and rice seized. On this report, the District Revenue Officer held an enquiry, and found the respondent to have committed an

offence contravening the provision of Cl.3(1) of the wholesale licence issued to him and Cl.16(1) of the Tamil Nadu Paddy and Rice (Regulation of

Trade) Order, 1974, and he ordered confiscation of the seized exoesss quantities of 19.81 quintals of boiled rice and 47:52 quintals of boiled

paddy.

As against this order, the respondent preferred an appeal to the learned Sessions Judge, Madurai. Before him it was contended that the

Revenue Divisional Officer, in his show cause notice as to Why the seized article should not be confiscated, has stated that the respondent has

committed offences and the would show that even before the enquiry the Revenue Divisional Officer has come to a conclusion that the respondent

had committed offences and this is wrong, and hence the enquiry is vitiated. It was further contended that the Inspector who seized the articles has

not followed the procedure laid down in S.100, of Crl. P.C., and hence the seizure is illegal. It was thus contended that the Inspector has not

recorded the reasons to believe that the appellant has committed or is committing or is about to commit an offence, and hence for this reason also

the entire proceedings of Inspector has vitiated. On these contentions it was argued that the order of confiscation must be held to be wrong and it

must be set aside.

The learned Sessions Judge, held that there was nothing improper in the Revenue Divisional Officer stating in his show cause notice that the

respondent has committed offences, and there is no substance in the contention of the respondent that the Inspector has not satisfied the

requirement of (sic) Code of Criminal Procedure, but however regarding the contention that the (sic) has not recorded his reasons to believe that

the respondent had committed or was committing or was about to commit an offence before his inspection, the learned Sessions Judge found much

force in this contention, and finding that the Inspector has not recorded the (sic) as contended and therefore the entire proceedings were vitiated

and far this reason he held the confiscation ordered is illegal, and (sic) he set aside the order of the Revenue Divisional Officer, and ordered return

of the articles to the appellant or to pay the (sic) thereof if they had been already (sic) the against this order of the Sessions judge the State has

preferred this revision petitioner.

It is contended that the finding of the learned Sessions Judge that the Inspector has not recorded his reasons to believe that the respondent has

committed or is committing or is about to commit an offence before his inspection, and this would vitiate the proceedings, is erroneous, and

therefore his judgment setting aside the order of confiscation is wrong. I am of the view that this contention is quite correct and it must prevail. The

Inspector has inspected the mill acting under the powers granted under Cl.25 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order,

1974. This clause, as far as it is relevant, reads thus:

Powers of entry, seizure, search, etc.�(1) 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, such officer, may, by himself or authorised any other officer to--

(a) inspect any book, account or other document or any stock of paddy or rice to the possession or under the control of any persons;

(b)...

(c)...

(d)...

(e) Seize the stock of paddy or rice along with the packages, coverings or receptacles in which such paddy or rice is found or the animals,

vehicles, vessels, boats or other conveyances used in carrying such paddy or rice and thereafter take or authorise the taking of all measures

necessary for securing the production of the packaging, coverings, receptacles, animals, vehicles, boats or other conveyances so seized in a Court

and for their safe custody pending such production;

Provided that the Officer conducting the inspection or search shall give a receipt for what is seized immediately after the seizure is affected.

(2) ... ... ...

(3) ------------

(4) ------------

This Cl.25 empowers the competent officer to inspect any book, account or other document or any stock of paddy or rice in the possession or

order the control of any person, and to seize the articles in respect of which the contravention is committed, and this he can do if he has reason to

believe that any contravention of the order has been committed or is I being committed or is about to be committed. It is clear therefore that the

competent officer can use the power under Cl.28 if he has reason to believe that any contravention of the order has been committed or is being

committed or is about to be committed, and it is not at all stated anywhere that the officer must record it he reasons for his so believing. Therefore

it is not necessary that the officer should record the reasons to believe, and it is uncalled for.

However, the Learned Counsel for the respondent cites the Supreme Court decision in K.L. Subhayya v. State of Karnataka 1979 M.L.J.

(Crl.) 484, land strongly relies on that decision in support of his contention that the Inspector should have recorded his reasons to believe that an

offence has been committed or being committed or about to be committed before he inspected the will. In this decision, while considering Ss. 53

and 54 of Mysore Excise Act, it has been held that the concerned Inspector who searched the car in that case had not I made any record of any

ground on the basil of which he had reason to believe that an offence under the Act was, being committed before proceeding to search the car, and

that the provisions of S. 54 of the Act had not at alt been complied with; But, S. 54 of Mysore Excise Act is not similar to Cl. 25 of Tamil Nadu

Paddy and Rice Regulation of Trade) Order, 1974. S. 53 of Mysore Excise Act empowers a Magistrate to issue a warrant for search of any place

in which he has reason to believe that any of the offences described in that Section has been or is being or is likely to be committed, and S. 54 is a

special provision which enables the officer concerned to effect search even without warrant in urgent cases, bat the section requires that before

doing so he must record the grounds of his belief. Thus it is required in S. 54 itself that the officer must record the grounds of his belief before he

makes the search. That is not the case in Cl. 25 of Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. Therefore, the Learned

Counsel for the respondent cannot get any assistance from the said Supreme Court decision. The Learned Counsel also relics on the decision in

Appavo Gounder v. Collector of South Arcot District 1981 M.L.J. (Crl.) 563 in which a single Judge of this Court deriving support from the

above decision of the Supreme Court has held that the failure on the part of the competent officer who made the search and seized the articles to

record his reasons for believing that an offence has been committed under the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974

vitiates the seizure and confiscation. As against this, the learned Public Prosecutor cites an unreported judgment of this Court in State by the Public

Prosecutor v, P Vijayakumar and another Crl. R.C. No. 438 of 1982, dt. 19-12-1984, which also has been rendered by a single judge of this

Court wherein the learned Judge has referred to the aforesaid judgment of the Supreme Court and also the aforesaid judgment of the single Judge

of this Court and another judgment of a Single Judge of this Court in M. perumal v. state 1960 TLNJ 171, and hat held that the absence of

recording reasons would not affect the validity of the proceedings. For all these reasons I am of clear view that the competent officer need not

record the reasons for his belief. Therefore the inspection and seizure is perfectly in order.

It is next rather half-heartedly contended by the Learned Counsel for the respondent that the competent officer should have complied with the

provisions of S. 100 of the Crl. P.C., and having failed to do so, the inspection and seizure must be held to be illegal. In this connection he draws

my attention to sub-Cl (3) of Cl.25 of the Tamil Nadu Paddy and Rice Regulation of Trade Order, 1974. But a reading of sub-Cl. (3) would show

that this sub-clause is subject to the provisions of sub-Cl. (1) of Cl. 25 Apart from stating that the reasons for his belief has not been stated by the

competent officer, no other thing has been pointed out as irregularity committed by him.

In the decision of this Court in State by the Public Prosecutor v. p. Vijaykumar and another Crl. R.C. No. 438 of 1982, dt. 19-12-1984 the

learned Judge after holding that recording of the reason to believe need not be (sic) further held (sic) on the decision in Bai Radha Vs. The State of

Gujarat, , that even assuring that recording of the (sic) for the belief is necessary, if no (sic) on account of that is shown, the (sic) cannot be held to

be illegal. I am in agreement with it.

In the result therefore the (sic) allowed and the judgment of the learned Sessions Judge is set aside and the order of the District Revenue Officer

is restered.