TMI Blog1959 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case in contravention of the provisions of Section 165 of the Code was illegal. Appeal dismissed. - 89 of 1958 - - - Dated:- 14-10-1959 - P.B. Gajendragadkar and K. Subha Rao, JJ. [Judgment per : Subha Rao, J.] - This is an appeal by certificate granted by the High Court of Judicature for the State of Rajasthan under Article 134(1)(c) of the Constitution against its judgment dated 20-9-1957, confirming that of the Munsif-Magistrate, Hinduan, acquitting the appellant of the charge under Section 358 of the Indian Penal Code. 2. The material facts lie in a small compass. The Deputy Superintendent of the Central Excise, having his headquarters at Bharatpur, received information that one Sulled and his son, Rehma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan preferred the present appeal questioning the correctness of the decision of the High Court. 3. Learned Counsel for the state raised before us two points : (1) The Central Excises and Salt Act (No. 1 of 1944) (hereinafter called the Act) and the Rules framed thereunder (hereinafter called the Rules) and the Criminal Procedure Code (hereinafter called the Code) maintain a distinction between the power to make a search and the manner of making it, and collate a specified power with a particular procedure. As the Dy. Supdt. of the Central Excise, in the present case, exercised his power to make a search only together information about the quantity of tobacco stored in the house of the respondent for imposing excise duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of any place in so far as such inspection or search is essential for the proper levy and collection of duties imposed by the Act. The Central Government in exercise of the power conferred by that section framed Rule 201 authorising itself to empower any officer of any department under its control to enter and search at any time by day or night any land, building, enclosed place premises, vessel, conveyance or other place upon or in which he has reason to believe that excisable goods are processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or the Rules. There are provisions in the Act and the Rules regulating the production, manufacture and processing of excisable goods, prescribing a machinery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appropriate to the power conferred on the Deputy Superintendent under Rule 201 of the Rules. In the Criminal Procedure Code there are four groups of sections regulating the searches authorised under it. Sections 47, 48, 51 and 52 appears in Chapter V of the Code which provides for the arrest, escape and retaking of persons; Section 47 provides for the search of a place entered by persons sought to be arrested; Section 48 for procedure where ingress is not obtainable; and Sections 51 and 52 for the search of the arrested persons. The Second group consists of Sections 100, 101, 102 and 103 of Chapter VII of the Code. Section 100 deals with the search for persons wrongfully confined, and the other sections are general provisions relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch after specifying in writing the place to be searched, and, so far as possible, the thing for which search is to be made. As search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power. A comparative study of the aforesaid provisions with the provisions of Rule 201 of the Rules indicates that searches made by a police officer during the course of an investigation of a cognizable offence can properly be approximated with the searches to be made by the authorised officer. Under Rule 201 of the Rules; for in the former case, the police officer makes a search during the investigation of a cognizable offence and in the latter the authorized officer makes the search to ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governing searches. If that can be ignored, if cannot be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure; it would be a search made in contravention of the provisions of the Code. 9. For the reasons mentioned, we hold that the search made by the Deputy Superintendent in the present case in contravention of the provisions of Section 165 of the Code was illegal. 10. Even so, the learned Counsel attempted to argue that even if the reasons were not recorded by the Deputy Superintendent, it was only an irregularity and the respondent had no right to prevent the officer from making the search. This contention has not been raised till now and we are not justified to allow it t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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