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2013 (8) TMI 787 - HC - VAT and Sales TaxValidity of Search and Seizure - Whether in exercise of powers of search and seizure under Section 54 of the Act strict compliance regarding search and seizure as laid down in Chapter VII Cr.P.C. more precisely Section 100 (4) Cr. P.C. was imperative - Held that:- The search team having made an attempt to get independent witnesses but looking to the time of search operation, if two independent witnesses as required were not available the search can not be held to be invalid. This apart, the search had been witnessed atleast by one independent witness of the locality itself and by another who happens to be the salesman of respondent no. 6 - Thus, the authenticity of carrying out the search operation stand established - It was not the case that no search was conducted - The factum of seizure of the holograms and other material had not been denied which clearly leads to an inference that the petitioner was involved in sale of spurious liquor by using fake holograms - Accordingly, the license of respondent no. 6 was rightly cancelled and the said order was not liable to be set aside by the appellate authority on a mere technicality that there was no second independent witness to the search as contemplated by Section 100 (4) Cr.P.C. The argument that the revisional order holding the search to be invalid having become final and therefore there was no occasion to enter into the above controversy is without force - The revisional order was an order of remand directing the first appellate authority to reconsider the matter in the light of observation made in the revisional order. The observations made in the revisional order were to the effect that there does not appear to be sufficient compliance of Section 100 (4) Cr.P.C. and that the compounding aspect as contemplated by Section 74 and 74-A of the Act was left out from consideration - There was no final verdict that the search was invalid for non compliance of provisions of Section 100 (4) Cr.P.C - It was misconceived to contend that the revisional order had expressed any final opinion regarding search - There was no finding by the revisonal authority that the search was invalid or that it cannot form the basis for passing any order in exercise of power under Rule 21 of the U.P. Excise (Settlement of Licenses for Retail Sale of Country Made Liquor) Rules, 2002. The appellate authority was fully empowered to go into the merits of the validity of the search and to pass appropriate orders but the appellate authority had taken a too technical approach in setting aside the order of cancellation of license passed by the District Magistrate/licensing authority for the reason that there was no independent second witness to the search completely ignoring that Section 54 of the Act does makes the provisions of Section 100 (4) Cr.P.C., absolute in its applicability to the search operation under the Act which have to be applied "as far as may be" depending upon the facts and circumstances and the situation of each case – Order set aside.
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