1979 JTR(SC) 68
1979 AIR(SC) 711 ; 1979 16 AllCriC 150 ; 1979 CriR(SC) 244 ; 1979 CrLJ 419 ; 1979 CrLJ 651 ; 1979 ILR(Kar) 457 ; 1979 1 KarLJ 410 ; 1979 MLJ(Cri) 484 ; 1979 2 SCC 115 ; 1979 SCC(Cri) 367 ; 1979 2 SCJ 29 ; 1979 2 SCR 1131 ; 1979 KLT(Online) 1088 ; 1979 KHC 754
SUPREME COURT OF INDIA
S. Murtaza Fazal Ali, A.D. Koshal, JJ.
K.L. Subhayya – Appellant
Versus
State of Karnataka – Respondent
Criminal Appeal No. 10 of 1974
Decided On : 24-01-1979
Act Referred :KARNATAKA EXCISE ACT : S.2(2)(1), S.54
Excise Act – Sections 32, 33, 34, 36, 37, 54 – Possession Of Liquor – In this appeal by Special Leave the appellant has been convicted under S. 34 of Mysore Excise Act and sentenced to three months rigorous imprisonment and a fine for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. – Mr. Javali appearing for the appellant has raised a short point before court. – He has submitted that Inspector of Excise who searched car along with panches had no jurisdiction to do so because he did so without complying with provisions of S. 54 of Excise Act. – Held, It is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S. 54 were not at all complied with. – This renders entire search without jurisdiction and as a logical corollary vitiates conviction. – Court feel that both Ss. 53 and 54 contain valuable safeguards for liberty of citizen in order to protect them from ill-founded or frivolous prosecution or harassment. – Point was taken before High Court which appears to have brushed aside this legal lacuna without making any real attempt to anlyse effect of provisions of Sections 53 and 54. – High Court observed that these two sections were wholly irrelevant. – Court is unable to approve of such a cryptic approach to a legal question which is of far-reaching consequence. – It was, however, suggested that word place would not include car, but definition of word place under Act clearly includes vehicles which would include a car. – Ground on which argument of petitioner has been rejected by High Court cannot be sustained by court. – Court is satisfied that there has been a direct non-compliance of the provisions of S. 54 which renders search completely without jurisdiction. – Appeal Allowed
Excise Act – Sections 32, 33, 34, 36, 37, 54 – Possession Of Liquor – In this appeal by Special Leave the appellant has been convicted under S. 34 of Mysore Excise Act and sentenced to three months rigorous imprisonment and a fine for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. – Mr. Javali appearing for the appellant has raised a short point before court. – He has submitted that Inspector of Excise who searched car along with panches had no jurisdiction to do so because he did so without complying with provisions of S. 54 of Excise Act. – Held, It is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S. 54 were not at all complied with. – This renders entire search without jurisdiction and as a logical corollary vitiates conviction. – Court feel that both Ss. 53 and 54 contain valuable safeguards for liberty of citizen in order to protect them from ill-founded or frivolous prosecution or harassment. – Point was taken before High Court which appears to have brushed aside this legal lacuna without making any real attempt to anlyse effect of provisions of Sections 53 and 54. – High Court observed that these two sections were wholly irrelevant. – Court is unable to approve of such a cryptic approach to a legal question which is of far-reaching consequence. – It was, however, suggested that word place would not include car, but definition of word place under Act clearly includes vehicles which would include a car. – Ground on which argument of petitioner has been rejected by High Court cannot be sustained by court. – Court is satisfied that there has been a direct non-compliance of the provisions of S. 54 which renders search completely without jurisdiction. – Appeal Allowed
Mr. S. S. Jawal and Mr. B. P. Singh, Advocates, for Appellant; Mr. M. Veerappa and J. R. Dass, Advocates, for Respondent.
Judgment
JUDGEMENT :- In this appeal by Special Leave the appellant has been convicted under S. 34 of the Mysore Excise Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100 for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. Mr. Javali appearing for the appellant has raised a short point before us. He has submitted that the Inspector of Excise who searched the car along with the panches had no jurisdiction to do so because he did so without complying with the provisions of S. 54 of the Excise Act. In our opinion, the contention is well founded and must prevail. S. 53 runs thus :
"If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under S. 32, S. 33, S. 34, S. 36 or S. 37 has been, is being or is likely to be committed, he may issue a warrant-
(a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed, and
(b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offence."
2. Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the Magistrate. S. 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus:
"Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer in charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under S. 32, S. 33, S. 34, S. 36, or S. 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief-
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."
3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S. 54 were not at all complied with.
4. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss. 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to anlyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequence. It was, however, suggested that the word place would not include the car, but the definition of the word place under the Act clearly includes vehicles which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non--compliance of the provisions of S. 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.
Appeal allowed.
For Citation : AIR 1979 SC 711
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