Dismissed

Jagdish Sah v. the State of Bihar

Patna HC7 Aug 2013CR. MISC./12313/2011

Case brief

AI extract

What is this about?

Challenges to essential-commodity prosecutions based on allegedly unauthorized searches failed. The court held that police could investigate cognizable offences and conduct searches despite lacking notification under control orders. It dismissed all four petitions, leaving prejudice from search and seizure for determination at trial and directing early completion.

What did the court decide?

Trial court directed to conclude trials at the earliest and record findings on any prejudice caused by search and seizure.

Jagdish Sah Vs the State of Bihar — Quashing and FIR | Patna HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA

¶2

Criminal Miscellaneous No.12313 of 2011

¶3

====================================================== Jagdish Sah, S/O Shri Fudani Sah, R/O Vill.- Kundwa Chainpur, P.S.Kundwa Chainpur, Distt.- East Champaran

¶4

.... .... Petitioner/s

¶5

Versus

¶6

The State of Bihar

¶7

.... .... Opposite Party/s

¶8

====================================================== With Criminal Miscellaneous No.1301 of 2011

¶9

====================================================== Shailendra Kumar Sinha, S/O Sri Lal Bahadur Singh, R/O Gajadhar Chowk, Gola Road, Danapur Cantt, P.S. Danapur, Distt. - Patna

¶10

Versus

¶11

The State of Bihar

¶12

The Executive Magistrate, Danapur, Patna

¶13

.... .... Petitioner/s .... .... Opposite Party/s

¶14

======================================================

¶15

With

¶16

Criminal Miscellaneous No.10287 of 2011

¶17

====================================================== 1. Parmeshwar Sah, S/O Sri Yogendra Sah, R/O Village- Daunma, P.S.Bihra, District- Saharsa

¶18

Shri Bauwa Sah @ Bauwa Sah, S/O Sri Chandeshwar Sah, R/O VillagePatori, P.S.- Bhara, District- Saharsa

¶19

.... .... Petitioner/s

¶20

Versus

¶21

The State of Bihar

¶22

Kumar Sishor Jha, S/O late Bijendra Jha, resident of Madhepura, P.S. Madhepura, district Madhepura at present Block Supply Officer, Sattar Kataiya Block, district Saharsa.

¶23

.... .... Opposite Party/s

¶24

======================================================

¶25

With

¶26

Criminal Miscellaneous No.35709 of 2011

¶27

====================================================== Kapil Prasad @ Kapildeo Prasad S/O Jagdish Prasad, R/O Mohalla - Sheo Nagar Station Road, Hilsa, P.S. Hilsa, Distt. - Nalanda

¶28

.... .... Petitioner/s

¶29

Versus

¶30

The State of Bihar

¶31

.... .... Opposite Party/s

¶32

====================================================== Appearance : For the Petitioner/s : Mr. N. K. Agarwal, Sr. Advocate Mr. D.N. Tiwari, Advocate Mr. Uday Bhanu Roy, Advocate Mr. Anant Kumar, Advocate For the State : Mr. Dilip Kr. Sinha, APP

¶33

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶34

¶35

====================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA C.A.V. ORDER

¶36

(Per: HONOURABLE MR. JUSTICE V.N. SINHA)

¶37

25 07-08-2013

¶38

These four petitions have been referred to the Division Bench under order no. 22 dated 17.04.2013 for authoritative pronouncement on the following issues :

¶39

i. whether after the amendment of the Essential Commodities Act, 1955, making offence cognizable though the Police has not been notified as an Inspector under the different Control Orders, has jurisdiction to make the search and seizure of the premises or the moving vehicles or carts carrying essential commodity in violation of the Act will make the search and seizure illegal in consequence, will lead the whole prosecution illegal or irregular and the prosecution would vitiate depending on prejudice caused to the accused concerned?

¶40

ii. Whether the seizure of loaded vehicle intercepted by Police at a deserted place in dark night, will make such search illegal, would vitiate the whole prosecution?

¶41

Before proceeding to deal with the questions

¶42

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶43

¶44

referred for authoritative pronouncement, it is necessary to notice the facts and circumstances of the case which persuaded learned Single Judge to make the reference. In Cr. Misc. No. 12313 of 2011, petitioner has prayed for quashing of the order dated 15.11.2010 passed by Sub-Divisional Judicial Magistrate, Sikrahana at Motihari in Trial No. 2337 of 2011 arising out of Kundwa Chainpur P.S. Case No. 22/09 whereunder learned Magistrate has taken cognizance of the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) and Sections 414, 120-B, 34 of the Indian Penal Code. In Cr. Misc. No. 1301 of 2011, petitioner has prayed for quashing of the order dated 1.9.2010 passed by Sub-Divisional Judicial Magistrate, Danapur in Special Case No. 165 of 1987, arising out of Danapur P.S. Case No. 284/87 whereunder learned Magistrate rejected the request of the petitioner to discharge him from the case. In Cr. Misc. No. 10287 of 2011, petitioners have prayed for quashing of the order dated 15.01.2011 passed by Sub-Divisional Judicial Magistrate, Saharsa in Special Case No. 07/2010 arising out of Bihra P.S. Case No. 103/10 whereunder learned Magistrate has taken cognizance of the offence under Section 7 of the Act. In Cr. Misc. No. 35709 of 2011 petitioner has prayed for quashing of the order dated 23.06.2011 passed by Additional Chief Judicial

¶45

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶46

¶47

Magistrate, Hilsa in Hilsa P.S. Case No. 367/10 whereunder learned Magistrate has taken cognizance for the offence under Section 7 of the Act.

¶48

Perusal of the aforesaid four petitions would indicate that quashing of the order taking cognizance, refusing to discharge has been prayed for by the petitioners on the sole ground that the officer who searched, seized the essential commodity, on the basis of which case under Section 7 of the Act and other allied Sections of the Indian Penal Code was registered, had no authority/jurisdiction to search the vehicle/premises from where the commodity (fertilizer) in Kundwa Chainpur P.S. Case No. 22/09, Danapur P.S. Case No. 284/87, Hilsa P.S. Case No. 367/10) kerosene oil in Bihra P.S. Case No. 103/10) has been seized, the entire proceeding based on such illegal search and seizure is fit to be quashed as Sub-Inspector Officer in charge in Kundwa Chainpur P.S. Case No. 22/09, team constituted by S.D.O., Danapur comprising of Executive Magistrate, Block Supply Officer and Supply Inspector in Danapur P.S. Case No. 284/87, Assistant Sub-Inspector in Bihra P.S. Case No. 103/10 and Probationer Sub-Inspector in Hilsa P.S. Case No. 367/10 had no jurisdiction to search the vehicle/ premises and seize the commodity (fertilizer) in terms of Clause 27 of the Fertilizer

¶49

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶50

¶51

(Control) Order, 1985 as the Sub-Inspector Officer in charge, team constituted by S.D.O., Danapur, Probationer Sub-Inspector has not been notified as Inspector under Clause 27 of the Fertilizer (Control) Order, 1985 and the order regulating trade in kerosene.

¶52

Learned Single Judge while making reference under order no. 22 dated 17.04.2013 referred to the Division Bench judgment of this Court in the case of Ram Chandra Pansari Vs. The State of Bihar, 1988 PLJR 623 whereunder Division Bench with reference to Rule 12 of the Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1966 observed that search and seizure made by the Assistant SubInspector of Police is without jurisdiction as police officer below the rank of Deputy Superintendent of Police, unless specially authorised in that behalf by the State Government, is not empowered with the jurisdiction to enter, inspect, search and seize the commodity. In this connection, Division Bench relied on the judgment of the Supreme Court in the case of K.L. Subhayya Vs. State of Karnataka, AIR 1979 Supreme Court 711 whereunder conviction of the appellant before the Supreme Court for the offence under Section 54 of the Mysore Excise Act for being in possession of 48 bottles of liquor recovered from a car driven by him was set aside on the ground that search and seizure of liquor

¶53

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶54

¶55

was made in violation of the provisions of the Mysore Excise Act. Placing reliance on the judgment of the Supreme Court in the case of K.L. Subhayya (supra) the Division Bench quashed the criminal proceeding initiated against Ram Chandra Pansari on the basis of illegal search and seizure made by the Assistant Sub-Inspector of Police.

¶56

In the reference order learned Single Judge has further referred to the subsequent judgment of the Supreme Court in the case of State of Maharashtra Vs. Natwarlal Damodardas Soni, AIR 1980 Supreme Court 593 whereunder Supreme Court observed that police had power under the Code of Criminal Procedure to search and seize the goods if police has reason to believe that a cognizable offence has been committed with respect to the goods. Assuming that the search and seizure was illegal then also it will not affect either the validity of the seizure and further investigation by the authorities or the validity of trial which followed on the basis of illegal search and seizure. In the reference order it has further been observed that the Act has been amended by Act 36 of 1987 and the offence under the Act has been made cognizable. It is also observed that once the offence under the Act has become cognizable police officer has necessary jurisdiction to make search and seizure as per provisions of the Code of Criminal

¶57

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶58

¶59

Procedure. According to reference order the Division Bench in the case of Ram Chandra Pansari had neither the occasion to consider the judgment of the Supreme Court in the case of State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) nor the Amendment made in the Act by Act 36 of 1987 whereunder the offence committed under the Act has become cognizable. In the aforesaid background, learned Single Judge has referred these petitions before the Division Bench for authoritative pronouncement on the issues formulated in the reference order and noted above.

¶60

Learned counsel for the petitioners contended that placing reliance on the judgment of the Division Bench in the case of Ram Chandra Pansari (supra) the orders impugned in the four petitions are fit to be quashed as the proceedings have been initiated against the petitioners on the basis of illegal search and seizure by an authority who had no jurisdiction in the matter, which goes to the root of the proceeding, as such, not only the orders but also the entire criminal proceeding is fit to be quashed. In this connection, he also referred to the Fertilizer Movement Control Order, 1973 and submitted that the said provision will not apply to the case of Jagdish Sah Vs. State of Bihar (Cr. Misc. No. 12313 of 2011) as from very perusal of the written report, which is

¶61

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶62

¶63

the basis of Kundwa Chainpur P.S. Case No. 22/09, it would appear that the two trucks, three tyre-carts loaded with fertilizer were parked within the Indian Border and according to SubInspector Officer in charge, who seized the fertilizer from the parked trucks, tyre-carts was meant for being smuggled out of India to Nepal. In the aforesaid background, according to learned counsel Kundwa Chainpur P.S. Case No. 22/09 should have been registered for violation of the Customs Act and not for violation of the Fertilizer Movement Control Order, 1973 as according to learned counsel Fertilizer Movement Control Order regulates movement of Fertilizer from one State of the Indian Union to another State of the Union and not from one State of the Indian Union to another country. It is submitted that for illegal movement of fertilizer from Bihar to Nepal prosecution under the Customs Act, 1962 ought to have been lodged. Learned counsel further submitted that the fertilizer seized in connection with Danapur P.S. Case No. 284/87 and Hilsa P.S. Case No. 367/10 by a team constituted by S.D.O., Danapur and Probationer Sub-Inspector, Hilsa P.S. is also wholly without jurisdiction and the prosecution of the accused persons of Danapur P.S. Case No. 284/87 (petitioners in Cr. Misc. No.1301 of 2011) and Hilsa P.S. Case No. 367/10 (petitioner in Cr. Misc. No. 35709 of 2011) on that basis is

¶64

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶65

¶66

fit to be quashed placing reliance on the judgment of the Division Bench of this Court in the case of Ram Chandra Pansari (supra).

¶67

Counsel for the petitioners in Cr. Misc. No.10287 of 2011 accused in Bihra P.S. Case No. 103/10 for the offence under Section 7 of the Act adopted the same submission placing reliance on the judgment of the Division Bench in the case of Ram Chandra Pansari (supra), as according to him Assistant SubInspector, Bihra P.S., who seized the kerosene oil had no authority to effect the seizure from possession of the petitioner and the seizure being without jurisdiction, the prosecution based on such seizure is fit to be quashed.

¶68

In support of the submission raised in paragraphs 6, 7 above, counsel for the petitioners also referred to sub-section (2)(j) of Section 3 of the Act, which empower the Central Government to issue order regulating trade in essential commodity for securing its equitable distribution and availability at fair price. The order made under Section 3 of the Act may also provide for any incidental, supplementary matters including in particular, the entry, search or examination of premises, vehicle etc. in which essential commodity is kept and the seizure by a person authorised to make such entry, search or examination. With reference to the aforesaid provision, it is submitted that the Government has

¶69

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶70

¶71

provided for appointment of officer vested with the power to enter, search the premises where the essential commodity is stored in respect whereof offence under Section 7 of the Act is said to have been committed. It is submitted that officer who conducted search and seizure in the present case(s) being not authorised under the control order issued under Section 3 of the Act, the entire proceeding taken on the basis of illegal search and seizure is fit to be quashed. In this connection learned counsel for the petitioners placed reliance on the judgment of the Supreme Court in the case of Malkiat Singh and another Vs. The State of Punjab, AIR 1970 Supreme Court 713 . Appellant of the said case Malkiat Singh was convicted for the offence under Section 7 of the Act as he was found to have violated the provisions of Punjab Paddy (Export Control) Order, 1959. The truck carrying 75 bags of paddy was seized by the Sub-Inspector of Food and Supplies, Punjab at Samolkha Barrier, 32 miles inside Delhi-Punjab boundary. It was asserted by the prosecution that the consignment of paddy was booked from Malerkotla in Punjab to Delhi. In the trial the driver, one of the accused, admitted that he was given the paddy for being transported to Delhi. The submission of the State that there was an attempt on the part of the appellants to transport paddy from Punjab to Delhi was repelled by the Supreme Court

¶72

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶73

¶74

observing that there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of appellants to commit the offence and as a matter of fact preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity to make distinction between acts which are merely preparatory to the commission of a crime and those which are sufficiently proximate to it which amount to an attempt to commit. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a hey-stack at the time of purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being

¶75

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶76

¶77

watched, he may be guilty of an attempt to burn it. The test to determine whether the act of the appellants constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to export paddy and they may have changed their mind at any place between Samolkha Barrier and Delhi- Punjab border and not have proceeded further in their journey. Supreme Court having observed as above set aside the conviction of Malkiat Singh under Section 7 of the Act. From perusal of the judgment in the case of Malkiat Singh (supra) it does not appear that Supreme Court quashed the criminal proceeding against appellant on the ground that criminal proceeding initiated against him is based on illegal search and seizure. In the said case conviction of the appellant before the Supreme Court was set aside on the ground that before violating the provisions of Punjab Paddy (Export Control) Order, 1959 appellants could have changed their mind and not have proceeded further in their journey. In view of above, in my opinion, Malkiat Singh is not an authority for quashing the prosecution on the ground of illegal search and seizure.

¶78

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶79

¶80

Learned counsel for the petitioners next referred to

¶81

the judgment of the Supreme Court in the case of K.L. Subhayya (supra) which has been heavily relied upon by the Division Bench in the case of Ram Chandra Pansari (supra). Perusal of the said judgment would also indicate that appellant K.L. Subhayya was convicted for the offence under Section 54 of the Mysore Excise Act and sentenced to rigorous imprisonment for 3 months and a fine of Rs. 100/- for being in possession of 48 bottles of liquor which were recovered from a car driven by Subhayya. Prosecution of Subhayya was lodged on the basis of search and seizure made by the Inspector of Excise who failed to record the ground on the basis of which he had a reasonable belief that offence under the Act was being committed before he proceeded to search the car and thereby violated the provisions of Section 54 of the Mysore Excise Act. Supreme Court set aside the conviction of Subhayya under the Mysore Excise Act as the prosecution, conviction of Subhayya was preceded by search and seizure made in violation of Sections 53, 54 of the Mysore Excise Act requiring the officer proceeding to conduct search and seizure to record his satisfaction that he has reasonable belief about the offence being committed under the Mysore Excise Act before proceeding to search the car of Subhayya. According to Supreme Court aforesaid requirement

¶82

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶83

¶84

is a valuable safeguard for protecting the liberty of the citizen from ill-founded or frivolous prosecution or harassment. In the case of Subhayya as provisions of Sections 53, 54 of the Mysore Excise Act was not carried out his conviction was set aside. Judgment in the case of Subhayya, however, does not indicate that on the ground of illegal search and seizure, the prosecution itself is required to be quashed.

¶85

Learned counsel for the petitioners next referred to the judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh, (1994) 3 Supreme Court Cases 299 in which Supreme Court considered with approval its earlier judgment in the case of K.L. Subhayya (supra) and submitted that the judgment of Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) having been followed by larger three Judge Bench of the Supreme Court in the case of Mohinder Kumar Vs. State, Panaji, Goa, (1998) 8 Supreme Court Cases 655, this Court while considering these petitions should consider the judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra). In view of the submissions noted above, judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) is required to be examined in detail. It appears respondent Balbir Singh and others were acquitted of the

¶86

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶87

¶88

offence under the N.D.P.S. Act on the ground that arrest, search of person, place without confirming to the provisions of the N.D.P.S. Act is illegal and consequently vitiates the conviction for the failure of the authorities to comply with the provisions of Sections 41 to 44, 49, 50 to 52, 57 of the N.D.P.S. Act. In the said case the police officers did not proceed to act under the provisions of the N.D.P.S. Act after having necessary information or after having reason to believe as contemplated under Section 42 of the N.D.P.S. Act. The search, seizure or arrest carried out by them was obviously under the provisions of the Code of Criminal Procedure contained in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr.P.C. Supreme Court also noticed that N.D.P.S. Act is not a complete code incorporating all the provisions relating to search, seizure, arrest etc. N.D.P.S. Act after incorporating the broad principles regarding search, seizure or arrest in Sections 41 to 43, 49 further laid down in Section 51 that the provisions of Cr.P.C. shall apply insofar as they are not inconsistent with the provisions of the N.D.P.S. Act to all warrants issued arrest, searches and seizure made under the N.D.P.S. Act. The provisions of Sections 100, 165 Cr.P.C. which are not inconsistent with the provisions of N.D.P.S. Act are applicable for effecting search, seizure or arrest under the N.D.P.S. Act. The words insofar as, they are not

¶89

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶90

¶91

inconsistent with the provisions of N.D.P.S. Act, in Section 51 are significant. It may also be noted that Section 4 of the Cr.P.C. provides that all the offences under any other law shall be investigated and enquired as mentioned therein. Sub-section (2) of Section 4 Cr.P.C. further provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the manner or place of investigation. Provisions of Cr.P.C. are applicable where an offence under the Indian Penal Code or any other law is being enquired into, tried and otherwise dealt with. From the words „otherwise dealt with‟ it does not necessarily mean something which is not included in the investigation, enquiry or trial and the words „otherwise‟ points to the fact that the expression dealt with is all comprehensive and that investigation, enquiry and trial are some of the aspects dealing with the offence. Consequently, the provisions of the Cr.P.C. shall be applicable insofar as they are not inconsistent with the N.D.P.S. Act to all warrants, searches, seizures or arrest made under the Act. Police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of Cr.P.C. comes across a person being in possession of the narcotic drugs and psychotropic substance then two aspects will arise, if he

¶92

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶93

¶94

happens to be one of those empowered officers under the N.D.P.S. Act then also he must follow the provisions of N.D.P.S. Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the N.D.P.S. Act. In paragraph 6 of the judgment Supreme Court considered whether failure to comply with the provisions of Cr.P.C. in respect of search, seizure would vitiate the trial and observed that violation of provisions, particularly Sections 100, 102, 103 or 165 Cr.P.C. strictly per se does not vitiate the prosecution case. If there is such violation what the courts have to see is whether any prejudice is caused to the accused. While appreciating the evidence and other relevant factors the courts should bear in mind that there was such violation and from that point of view evaluate the evidence on record. Under Section 100 Cr.P.C. the officer conducting search should call upon two or more independent and respectable persons of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the locality is available or is willing to be a witness to the search, to attend and witness the search. Section 165 Cr.P.C. lays down that whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for belief

¶95

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶96

¶97

that anything necessary for the purpose of an investigation into any offence which he is authorised 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, such officer may, after recording in writing the grounds of his belief and specifying in such writing may proceed to search or to cause search to be made. Section 165(4) lays down that the provisions of this Code as to the search warrants and the general provisions as to searches contained in Section 100 shall so far as may be, apply to a search made under Section 165 also. The scope of Sections 100, 165 Cr.P.C. has been examined by the Supreme Court in number of cases. In the case of State of Punjab Vs. Wassan Singh & Ors., (1981) 2 Supreme Court Cases 1 Supreme Court held that irregularity in search cannot vitiate the seizure of the articles. In Sunder Singh Vs. State of Uttar Pradesh, AIR 1956 Supreme Court 411 Supreme Court held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra Vs. P.K. Pathak, (1980) 2 Supreme Court Cases 259 Supreme Court held that absence of any independent witness from the locality to

¶98

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶99

¶100

witness the search does not affect the trial and the conviction of the accused under the Customs Act. In the case of Radha Kishan Vs. State of U.P., AIR 1963 Supreme Court 822 Supreme Court held that irregularity in a search would cast a duty upon the court to scrutinize the evidence regarding the search very carefully. In the case of Matajog Dobey Vs. H.C. Bhari, AIR 1956 Supreme Court 44 Supreme Court held that when the statutory provisions have not been complied with, it may however affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explained such circumstances which made it impossible to comply with these provisions. In State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) referred to in the reference order Supreme Court after referring to the above mentioned decisions observed as under “taking the first contention first it may be observed that the police had powers under the Code of Criminal Procedure to search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the customs authorities or the validity of the trial which followed on the complaint of the Assistant Collector of

¶101

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶102

¶103

Customs”. It is, therefore, evident that non-compliance of the provisions of Sections 100, 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of-course in such a situation the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as Rule of caution and depending upon the circumstances of the case the courts looked for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witness with the search and strictly comply with these provisions. Having considered the scope and ambit of Sections 100, 165 Cr.P.C. Supreme Court observed in sub-paragraph 4-A of paragraph 25 that if a police officer even if he happens to be an empowered officer while effecting arrest or search during normal investigation into offences under the provisions of Cr.P.C. fails to

¶104

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶105

¶106

strictly comply with the provisions of Section 100, 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity would not per se be illegal and would not vitiate the trial. Having held as above, Supreme Court in paragraph 26 of the said judgment refused to interfere with the acquittal of the respondents though search was carried out by the police officers who were not empowered to conduct search and seizure on the ground that the offences were committed long time back and it is not expedient to order re-trial.

¶107

Learned counsel for the petitioners also placed reliance on the judgment of the Supreme Court in the case of Mohinder Kumar (supra) whereunder Supreme Court placing reliance on the earlier judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) set aside the conviction of the appellant under the N.D.P.S. Act for violation of the provisions of Section 42(1) proviso and sub-section (2) of Section 42 of the said Act as the violation of those Sections caused prejudice to the appellant which was evident from the evidence led during trial.

¶108

Learned counsel for the petitioners further placed reliance on the judgment of this Court in the case of M/s. Hanutram Jawahirlal and anr. Vs. The State of Bihar, 1989

¶109

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶110

¶111

PLJR 234 and submitted that offence under Section 414 I.P.C. alleged against the petitioner Jagdish Sah of Cr. Misc. No. 12313 of 2011 is required to be quashed as there is no material on record to suggest that the fertilizer in question was a stolen property. It is submitted that in the case of M/s. Hanutram Jawahirlal (supra) learned Single Judge having noticed the material on record i.e. silver transport voucher issued by the Custom Officer under the Custom (Amendment) Ordinance and Rules framed thereunder drew an inference that the offence under Section 414 I.P.C. is not made out as no case under Section 379 for theft of the seized article has anywhere been registered though the matter has remained under investigation for about 10 months and on the basis of the said inference concluded in paragraph 19 of the judgment that the First Information Report do not disclose any offence at all and quashed the further investigation observing that continuation of any further investigation in the matter is nothing but an abuse of the process of the court.

¶112

Counsel for the State, on the other hand, reiterated the same submission which was noted in the reference order. He further contended that the Act having been amended by Act 36 of 1987 the offence under the Act has become cognizable and the police authorities are always empowered to investigate a

¶113

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶114

¶115

cognizable offence not only under the Indian Penal Code but under any other law including the Act. Police officer may not have been notified as Inspector under the Act or the orders framed thereunder but by virtue of the provisions contained in the Code of Criminal Procedure if the police officer has reason to believe that cognizable offence, may be under the Act, has been committed he has got jurisdiction to investigate the same. Search and seizure being part of investigation is always within the domain of the police officer investigating the offence. He further submitted that even if officer conducting search and seizure is not authorised under the orders issued in terms of the Act to conduct search and seizure, search and seizure conducted by such officer should not persuade this Court to quash the order taking cognizance, order refusing to discharge the accused prosecuted on the basis of such illegal search as illegality in effecting search is to be appreciated in the light of the evidence adduced during trial and having considered the evidence adduced if the trial court is satisfied that illegal search and seizure has prejudiced the accused then he is to be acquitted but the order taking cognizance or refusing to discharge the accused on the ground of illegal search and seizure is not required to be quashed/interfered with.

¶116

Learned counsel for the State further pointed out

¶117

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶118

¶119

with reference to the impugned orders in the four petitions that search and seizure by the police officer in three cases and team constituted by Sub-Divisional Officer, Danapur comprising of Executive Magistrate, Block Supply Officer, Supply Inspector in Danapur P.S. Case No. 284/87 may not be authorised to conduct search and seizure but illegality in search and seizure should not persuade this Court to quash the prosecution unless it is established beyond doubt during trial that on account of illegal search and seizure petitioners have been prejudiced. Learned counsel further pointed out that in none of the case law relied upon by the counsel for the petitioners the prosecution of the appellant was quashed on the ground of illegal search and seizure. He also submitted that having considered the evidence led during trial indicating prejudice caused to the accused, his conviction was set aside but in none of those cases prosecution was quashed on the ground of illegal search and seizure.

¶120

With reference to the Division Bench judgment of this Court in the case of Ram Chandra Pansari (supra) learned counsel for the State submitted that in the said case prosecution of Ram Chandra Pansari was quashed on the ground of illegal search and seizure placing reliance on the judgment of the Supreme Court in the case of K.L. Subhayya (supra). In the case of K.L. Subhayya

¶121

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶122

¶123

(supra) the Inspector who searched the car of the appellant did not record the ground on the basis of which he had reasonable belief that an offence under the Mysore Excise Act was being committed before proceeding to search the car which Subhayya was driving and thus provisions of Section 54 was not complied with by the officer who made the search and seizure. Supreme Court in the aforesaid background concluded that the entire search was without jurisdiction and as a logical corollary vitiated the conviction. Supreme Court while holding the search and seizure as without jurisdiction did not consider the question of prejudice caused to Subhayya on account of illegal search and seizure. It appears this Court in the case of Ram Chandra Pansari (supra) while placing reliance on the case of K.L. Subhayya (supra) did not notice the judgment of the Supreme Court in the case of Radha Kishan (supra ) . Radha Kishan was a postman. He and his father were living in the same house. Certain undelivered postal articles were recovered from an almirah in the house. The key of which was produced by the father of appellant Radha Kishan who was tried and convicted of an offence under Section 52 of the Post Office Act, for secreting postal articles. One of the contentions raised on behalf of Radha Kishan was that the search and seizure was illegal inasmuch as it was in contravention of the provisions of Sections

¶124

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶125

¶126

103, 165 of the Code of Criminal Procedure. Mudholkar J. speaking for the Court repelled the contention observing as follows : “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, 165 of the Cr.P.C., are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues”. In the case of Shyam Lal Sharma and another Vs. The State of M.P., AIR 1972 Supreme Court 886 , Supreme Court held that even if the search is illegal being in contravention with the requirements of Section 165 Cr.P.C. that provision ceases to have any application to the subsequent steps in the investigation. In State of Kerala etc. Vs. Alasserry Mohammed etc., AIR 1978 Supreme Court 933 question arose whether the failure on the part of the Inspector to comply strictly with the statutory provisions would vitiate the trial and conviction of the respondents. Supreme Court answered in negative placing reliance on the judgment of the Supreme Court of the United States of America and maintained conviction placing

¶127

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶128

¶129

reliance on search and seizure which was unlawful. In the case of Ram Chandra Pansari (supra) this Court did not notice the judgment of the Supreme Court in the case of State of Maharashtra Vs. Natwarlal Damodardas Soni (supra). Natwarlal Damodardas Soni was convicted for the offence under sub-section (1) of Section 135 of the Customs Act for possessing smuggled gold. His conviction was set aside by the High Court on the ground that respondent possessed smuggled gold which was illegally seized by the police authorities of the Anti Corruption Bureau. As before the trial court learned counsel appearing for the respondent also contended before the Supreme Court that the search and seizure of gold from the house of respondent by the police authorities was illegal on the ground that information on the basis of which the police authorities of Anti Corruption Bureau conducted the search was not produced which vitiated the trial that followed. In the alternative, counsel submitted that Section 123 of the Customs Act which places the burden on the accused person to show that the seized goods are not smuggled gold was not applicable in the present case because the seizure of the gold was not made by the customs authorities under the Customs Act but by the police authorities of Anti Corruption Bureau under the Code of Criminal Procedure. It was submitted that heavy burden lay on the

¶130

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶131

¶132

prosecution to prove every ingredient of the offence with which respondent was charged. Supreme Court rejected the contention observing that police officer has power under the Code of Criminal Procedure to search and seize the goods if the police authority has reason to believe that a cognizable offence had been committed in respect thereof. Even if, the search is illegal then also it will not affect the validity of the seizure and further investigation or the validity of the trial which followed.

¶133

Counsel for the State placing reliance on subsection (2) of Section 4 Cr.P.C. submitted that the offence under the Act and the orders framed thereunder shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Cr.P.C. as there is no embargo in the Act or the orders framed thereunder that the provisions of the Cr.P.C. will not apply to investigation, enquiry or trial of those offences. He further submitted that illegality in conducting search and seizure as per the provisions of the Cr.P.C. will have to be appreciated with reference to the prejudice caused to the accused for which evidence is required to be led in the trial court for its appreciation, unless prejudice on account of illegality committed in conducting search and seizure is shown, merely because search and seizure is illegal the accused may not be entitled for acquittal. In this

¶134

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶135

¶136

connection he also placed reliance on the aforesaid two judgments of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) and Mohinder Kumar (supra).

¶137

Learned counsel for the State finally submitted that for smuggling of essential commodity from a State of the Indian Union to another State of the Union or to another country prosecution has to be launched under Section 7 of the Act and not under Chapter XVI of the Customs Act, 1962 as the provisions of the Customs Act, 1962 and the liability to pay duty under the Customs Act, 1962 would arise only when the goods are sent from a place outside India to a place in India.

¶138

Having noticed the facts, heard the arguments and dealt with the case law relied upon by the counsel for the parties, it is evident that the petitioners in the four petitions have challenged the order taking cognizance or refusing to discharge them of the offence under Section 7 of the Act on the ground that launching of the prosecution against the petitioners was preceded by illegal search, seizure. In support of such contention heavy reliance has been placed by the counsel for the petitioners on the Division Bench judgment of this Court in the case of Ram Chandra Pansari (supra), perusal whereof indicates that Division Bench in the case of Ram Chandra Pansari has placed heavy reliance on the

¶139

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶140

¶141

judgment of the Supreme Court in the case of K.L. Subhayya (supra) and held that in case of illegal search and seizure prosecution under Section 7 of the Act is fit to be quashed. While quashing the prosecution of Ram Chandra Pansari Division Bench of this Court did not notice the Amendment made in the Act by Act 36 of 1987 making the offence under the Act cognizable. The Division Bench also could not notice sub-section (2) of Section 4 of the Cr.P.C. which empowered the police to investigate, enquire into, try or otherwise deal with cognizable offence committed under any law including the Act with reference to the provisions contained in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr.P.C. The Division Bench in the case of Ram Chandra Pansari also did not notice the earlier Supreme Court judgment in the case of Wassan Singh (supra) holding that irregularity in search cannot vitiate the seizure of the articles. Division Bench also did not notice the case of Radha Kishan (supra) holding that irregularity in search would cast a duty upon the court to scrutinize the evidence regarding search very carefully. Division Bench also did not consider the law laid down by the Supreme Court in the case of Shyam Lal Sharma (supra) that even if the search is illegal subsequent steps in the investigation shall not be vitiated on account of illegality in search and seizure. It also did not consider

¶142

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶143

¶144

the dictim of the Supreme Court laid down in the case of State of Kerala Vs. Alasserry Mohammed etc. (supra) where the Supreme Court observed that failure on the part of the Inspector to comply strictly with the statutory provisions would not vitiate the trial and conviction of the respondents. Finally the Division Bench in the case of Ram Chandra Pansari (supra) also did not consider the case of State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) referred to in the reference order in which Supreme Court observed that police has powers under the Code of Criminal Procedure to search and seize the commodity if they had reason to believe that a cognizable offence has been committed in respect of the commodity. It is, therefore, evident that Division Bench in the case of Ram Chandra Pansari (supra) could not notice the amending Act 36 of 1987 whereunder offence under the Act is made cognizable as also the Supreme Court judgments noted above in the case of Wassan Singh, Radha Kishan, Shyamlal Sharma, State of Kerala Vs. Alasserry Mohammed etc. and State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) whereunder it has been observed that illegality in search and seizure may not vitiate the prosecution, trial and conviction unless prejudice is shown to have been caused to the offender. It is, thus, not difficult to conclude that the Division Bench judgment of this

¶145

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶146

¶147

Court in the case of Ram Chandra Pansari (supra) has been rendered without the benefit of having noticed the amending Act 36 of 1987, the judgment of the Supreme Court in the case of Wassan Singh, Radha Kishan, Shyam Lal Sharma, State of Kerala Vs. Alasserry Mohammed etc. and State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) is per in curium and not a binding precedent. In view of the provisions of Amending Act 36 of 1987 offence under the Act having been made cognizable police officers though not notified as Inspector under the different control orders issued under the Act have the jurisdiction to investigate the offence committed under the Act with respect to the essential commodity. Search and seizure being part of investigation police officers have also jurisdiction to conduct search, seizure of the premises, vehicle in which the essential commodity is stored or is being transported.

¶148

The submission of the learned counsel for the petitioners that for illegal movement of fertilizer from Bihar to Nepal prosecution under the Customs Act, 1962 ought to have been lodged, is also misconceived as the provisions of the Customs Act, 1962 and the liability to pay duty under the Customs Act would arise only when the goods are sent from a place outside India to a place in India.

¶149

Patna High Court Cr.Misc. No.12313 of 2011 (25) dt.07-08-2013

¶150

¶151

In view of the findings above, the prosecution launched against the petitioners shall proceed in accordance with law but it is observed that it shall be open for the petitioners to impress upon the trial court that they have suffered prejudice on account of search and seizure made by the police authorities/ team constituted by the S.D.O., Danapur which is the basis of their prosecution. The trial court while disposing of the trial shall consider the aforesaid submission in accordance with law and record its finding with respect to the prejudice suffered by the petitioners on account of search and seizure which is the basis of their prosecution. The two questions posed by the learned Single Judge in the reference order are answered accordingly.

¶152

The four petitions are dismissed with direction to the trial court to proceed with the trial and conclude the same at the earliest.

¶153

(V.N. Sinha, J)

¶154

I Agree. (Rajendra Kumar Mishra, J)

¶155

jesh/AFR

¶156

(Rajendra Kumar Mishra, J)

Jagdish Sah v. the State of Bihar

Case brief

What is this about?

What did the court decide?

Jagdish Sah v. the State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kalaktar Sharma @ Collector Sharma Vs The State Of Bihar and Ors.

Rekha Devi Vs The State Of Bihar and Ors.

Tara Devi Vs State of Bihar and Ors.

Sitaram Pandit @ S.r. Pandit Vs The State Of Bihar and Ors.

Arjun Yadav Vs State of Bihar

Ravindra Kumar Singh Vs The State Of Bihar