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TMI Blog2013 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. is imperative? The facts leading to the present writ petition lie in the narrow campus. Bhupendra Singh respondent no. 6 was admitted as licensee to do retail business in country made liquor at Shivali in the year 2009-10. The license was renewed for the next year 2010-11. A search and seizure operations were carried out at his shop at about 10.15 p.m. in the night on 5.2.2011 by a team of excise officers. During the aforesaid operation the stock register was not found; two bundles of fictitious holograms weighing about 1 kg. were seized; a bottle with two litres of country made liquor having concentration of 31.7% VV; and 115W wrappers/labels of Karina brand country made liquor etc., were found and taken into custody. The said search and seizure operations were carried out in the presence of one Deva Tiwari, son of Putain Tiwari, the owner of the sweet shop in the vicinity and in the presence of Arvind Kumar Singh, the salesman of respondent no. 6. On the basis of the material seized dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner is under the facts and circumstances of the case as no independent witness was available at the time the search was carried out, strict compliance of procuring two witnesses was not possible and that Section 54 itself makes the application of the provisions of search and seizure as contained in the Cr.P.C. flexible. On behalf of respondent no. 6 it has been submitted that once the revisional court itself while remanding the matter has recorded that the search was invalid and the said order has attained finality, there is no occasion for the appellate court to pass the impugned order. Learned Standing counsel on the other hand submitted that once the matter had been remanded, the entire controversy stood re-opened. Section 54 of the Act stipulates that the provisions of Cr.P.C., relating to searches shall be applicable, "as far as may be" to all action taken in that respect under the Act. Section 54 of the Act reads as under:- 54. Procedure relating to arrest, searches etc-. " The provision of the [Code of Criminal Procedure, 1973] relating to arrests, searches, search warrants, production of persons arrested and investigation into offences shall be applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quor shop. In the above circumstances as is also reflected from the order of the District Magistrate/licensing authority dated 28th February 2011 that despite an effort to take independent witnesses no one except the witnesses as described above were available. A three Judges Bench of the Supreme Court in Sundar Singh Vs. State of U.P. AIR 1956 SC 411 in dealing with irregularities in conducting a search for failure to call respectable persons of the locality as witness as per provisions of the Cr.P.C. held that even assuming that two Rikshawalas who actually witnessed the search as found by the courts below were not respectable inhabitants of the locality would not invalidate the search. In Shyam Lal Vs. King Emperor AIR 1927 Alld. 516 His Lordship in considering the provisions relating to search and seizure contained in the erstwhile Cr.P.C. in the light of the expression "so far as it may be" held that the provision of clause 4 of Section 165 of having two independent witnesses during search is not imperative and therefore the search under the circumstances of that case was held to be perfectly illegal. In Durand Didir Vs. Chief Secretary Union Territory of Goa AIR 1989 SC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that when evidence has come on record that an attempt was made to join a person from public at the time of search but no such person was available it will not render the search and seizure unreliable. In view of the aforesaid facts and circumstances, 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 has 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 is not the case that no search was conducted. The factum of seizure of the holograms and other material has 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 conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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