TaxTMI 
TaxTMI 
2013 (8) TMI 276
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....r 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? 2. Before proceeding to deal with the questions 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 p....
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....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 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. 5. 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 ....
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....ge, 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 fit to be quashed pl....
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....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 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 becaus....
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.... 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 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....
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....rovisions 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 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....
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.... 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 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....
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....mal investigation into offences under the provisions of Cr.P.C. fails to 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. 11. 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 d....
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.... 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. 14. Learned counsel for the State further pointed out 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 upo....
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....t 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 reliance on search and seizure ....
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....s 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 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). 17. 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. 18. 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 ....
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....pra) 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 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 Moh....