T.N.R. Tirumalpad, J.C.
1. The petitioners were convicted by the first class magistrate, Sadar under Section 353, I.P.C. and each of them sentenced to undergo R.I. for 6 months. In the appeal to the Sessions Judge, their conviction was confirmed but their sentence was reduced to 2 months' R.I. each. Now they have come up in revision.
2. On 16-7-59 at about 8 P.M., P.W. 1 N.R. Datta, an Inspector of Land Customs, Preventive; Unit along with P.W. 2, a Sub-Inspector of Land Customs and a Peon, Ajit Das were patrolling in the Arundhutinagar area in the course of their preventive work. On seeing a rickshaw drawn by rickshaw puller, P.W. 3 with the petitioners 1 and 2 inside it along with a gunny bag put under a bundle of fuel and another basket on top of the fuel coming from the direction of the Pakistan, border, they stopped the said rickshaw and searched it and found the gunny bag and the basket to contain betelnuts. P.W. 1 thereupon asked the rickshaw puller to proceed to the Customs Office in Mantribari road with P.W. 1 and P.W. 2 and the articles inside as he wanted to make a further check. P. Ws. 1-3 followed the rickshaw. When the rickshaw had travelled for about 2 miles and passed a furlong beyond the Kotwali police station and reached near the house of petitioner No. 1, he asked the rickshaw puller to stop and on it being stopped, he got down and unloaded the basket of betelnuts from the rickshaw and was unloading the bundle of fire wood. Thereupon P. Ws. 1 and 2 protested and a hot altercation ensued between the petitioners 1 and 2 and P. Ws. 1 and 2. I have here taken the version given by P.W. 3, the rickshaw puller and not the version given by P. Ws. 1 and, 2, according to whom there was no such altercation. But their version is certainly likely to be somewhat coloured on this point and the rickshaw puller's version is more likely to be correct and disinterested.
3. As usually happens when there is such altercation on the road, many persons collected on the scene including petitioner No. 3 Chitta Ranjan Sen and they were all said to have surrounded the Customs Officers and the basket of betelnuts and a portion of the fuel were said to have been taken away. P.W. 1 thereupon stood on the gunny bag containing the betelnuts, evidently to prevent it from being taken away. Both P.Ws. 1 and 2 were then said to have been manhandled, P.W. 1 by Chitta Ranjan Sen and P.W. 2 by. petitioner No. 1. 'Mishandled' is the word used by the magistrate, but T take it that he meant 'manhandled'. This manhandling is spoken out by P. Ws. 1 and 2. But P.W. 3, the tickshaw puller denied that there was any physical assault of the Customs Officers. Here again, I prefer the version of P.W. 3. After all, according to P. W.1, what the crowd did to him was to spoil the ironing of his official uniform. But he admitted that he did not show this to anybody on arrival at the Customs office or to P.W. 4, the A.S.I. when the latter arrived at the spot while the trouble was going on.
4. The Peon, Ajit Das rushed to the police station when the trouble was going on and P.W. 4 the A.S.I. arrived on the scene and he was told by P.W. 1 that he was being obstructed by the surrounding crowd to take the rickshaw to the Customs office. No report of any manhandling by anybody in the crowd was made to the A.S.I. Anyway, the trouble ceased on the arrival of the A.S.I, and P.W. 1 and his party took the gunny bag of betelnuts and the remaining fire wood in the same rickshaw to the Customs office. The 'next day, after obtaining the necessary permission from his superior officer, P.W. 1 lodged the F.I.R. in the kotwali police station. Then the petitioners were prosecuted under Section 353, I.P.C.
5. The defence of petitioners 1 and 2 was that though the rickshaw was stopped by P.W. 1 and 'his party in Arundhutinagar area, there was no search at all. But the rickshaw was directed by 'P.W. 1 to be taken to the Customs office. When 'the rickshaw reached near the house of petitioner No. 1, he asked the rickshaw to be stopped and on being stopped, he got down. But he did not try to unload anything from the rickshaw. The Customs officers objected to petitioners 1 and 2 getting down from the rickshaw and the Customs officers wanted to take them also to the Customs office. Then there was hot altercation but there was no manhandling. Thereupon P.W. 4 the A.S.I, arrived and everybody dispersed and the rickshaw with the articles inside was taken to the Customs office. Thus they deny the offence under Section 353, I.P.C. All the petitioners say that petitioner No. 3, Chitta Ranjan Sen had no part in the occurrence.
6. Certain legal defences were also raised. They were that P.W. 1 and Irs party were not empowered to stop and search the rickshaw or to take it to the' Customs office and secondly that even if they have the power, it was not proved by production of the diary of P.W. 1, that on the date in question he was on patrol duty and was performing his official duties on the date in question. I do not find from the judgments of the lower Courts that these legal defences were raised before them, though I find that in the cross-examination of P.W. 1, he was asked whether he had entered in his personal diary that they were on patrol duty on the material date and he answered in the affirmative. The learned Government Advocate produced the diary of P.W. 1 before me and I find that the occurrence has been mentioned in detail in the said diary. There can be no doubt that P.W. 1 was on patrol duty that day. Nor is there anything in the other legal defence that the 'Customs officers were not empowered to stop and search the rickshaw. Section 171 of the Sea Customs Act permits any duly empowered officer of Customs or other person duly employed for the prevention of smuggling to stop and search any conveyance at any place in India. P.W. 1 was an Inspector of Land Customs, Preventive Branch. He was thus duly employed for the prevention of smuggling and he is authorised to stop and search the rickshaw. Thus the legal defences will not be of any avail to the petitioners.
7. The magistrate held, as I said, that the petitioners were guilty under Section 353, I.P.C. According to him, betelnut was a contraband article and the Inspector and Sub-Inspector of Land Customs were competent to haul up any person on suspicion moving betelnuts from the border area and that as the gunny bag was full of betelnuts, P.W. 1 and his staff had every right to stop the rickshaw and to divert it to their office in order to further check the contents for necessary action and that they were discharging their official duties in so doing. The magistrate further held that after P.W. 1 had taken command of the rickshaw, the occupants namely, petitioners 1 and 2 had no more right to guide the rickshaw puller or to call upon him to stop and that the attempt on the part of the petitioners 1 and 2 to forcibly stop the rickshaw in front of the house of petitioner No. 1 on the way to the Customs office was undoubtedly an obstruction offered to the Customs staff in the discharge of their official duty. He further held that Chitta Ranjan Sen joined petitioners 1 and 2 in forcibly taking away the goods from the rickshaw and the Customs staff were surrounded and 'mishandled' by them and hence the petitioners were all guilty of offering obstruction to P.W. 1 and his staff while engaged in the discharge of their official duty. The learned Sessions Judge was in entire agreement with the magistrate in confirming the conviction. He said that the petitioners were guilty under Section 353, I.P.C. by forcibly preventing the Customs officers from taking the rickshaw to the Customs office. The lower Courts appeared to be under the impression that mere obstruction to a public servant would amount to an offence under Section 353. It is not so. The main ingredient is assault or use of criminal force.
8. I wish the lower Courts had dealt with the powers of the Customs officers under the Customs Law before they came to the conclusion that the Customs staff in this case were engaged in the discharge of their duties at the time when the occurrence took place. Section 171 of the Sea Customs Act certainly permits the preventive staff of the Customs to stop and search any conveyance. Hence, P.W. 1 was perfectly justified in stopping and searching the rickshaw at Arundhutinagar and he and his party were certainly engaged at that time in the discharge of their official duties. Section 178 of the said Act gives the power to the preventive officers on such search to seize anything liable to confiscation under the said Act. Thus P.W. 1 after searching the rickshaw had the right to seize the betelnuts, if he reasonably believed that they were smuggled articles. Again, Section 173 gives the power to the preventive staff to arrest any person against whom a reasonable suspicion existed that he has been guilty of an offence under the said Act. Thus P.W. 1 could have arrested petitioners 1 and 2 if he thought they were guilty of such offence.
9. It is pertinent to remark, however, that P.W. 1 admitted that after the search he did not either seize the articles or arrest petitioners 1 and 2. What the magistrate and the Sessions Judge have found is that P.W. 1 took charge of the rickshaw and directed the rickshaw puller to take the rickshaw with the articles and with petitioners 1 and 2 inside it to the Customs office, which was more than 2 miles away for the purpose of further checking. Both the Courts were of opinion that P.W. 1 had the authority to take control of the rickshaw and direct it to go to the Customs office and that on such direction, the engagement of the rickshaw by petitioners 1 and 2 came to an end. There is nothing in Section 171 or in any other section of the Sea Customs Act which would permit a preventive officer on stopping and searching a conveyance to take control of the vehicle and to direct the vehicle to be taken to the Customs office for the purpose of checking the articles contained in it. The power given to them on stopping and searching a conveyance is, as stated above, to seize the articles or to arrest the persons under Sections 178 and 173 of the Sea Customs Act.
10. The rickshaw had been engaged by petitioners 1 and 2 on hire and the articles were loaded in the rickshaw by petitioners 1 and 2. So long as the preventive staff do not arrest petitioners 1 and 2 or seize any articles in the rickshaw, the engagement of the rickshaw by petitioners 1 and 2 continues and the articles also continue in the possession of petitioners 1 and 2 and the preventive staff have no authority to direct the rickshaw puller to take the rickshaw to the Customs office with petitioners 1 and 2 and the articles inside it. Such a direction given by P.W. 1 without any authority cannot be said to be one given in the discharge of his official duties and it can be disregarded. Thus when the rickshaw was proceeding further towards the house of petitioner No. 1 he had every right to stop the rickshaw and even to unload his articles from the rickshaw when it reached in front of his house. Even at that stage the preventive staff could have seized the articles and arrested petitioners 1 and 2 and if any illegal obstruction was given in the arrest or if assault or use of criminal force was indulged in, in effecting the seizure, the petitioners could have been charged under Section 224 or 353, I.P.C. But it is not the case of the prosecution that the preventive staff either seized the articles or arrested petitioners 1 and 2. They merely protested against the stoppage of the rickshaw and against the unloading of the articles. There was no use of a protest, so long as there was no arrest or seizure and if the protest went unheeded by the petitioners, they cannot De held guilty of any offence.
11. It is pertinent that what P.W. 1 told the A.S.I. P.W. 4 was that the petitioners and others were obstructing the preventive staff from taking the rickshaw to the Customs office. As pointed out, the rickshaw was not under their control and the obstruction, if any, was to taking the articles to the Customs office. Unless there was a seizure of the articles, they were still in the possession of petitioners 1 and 2 and they had every right to unload them. Again, the petitioners had every right to stop the rickshaw and to get down from the rickshaw. The obstruction really appears to have been on the part of the preventive staff to petitioners 1 and 2 getting down from the rickshaw and unloading the articles which petitioners 1 and 2 were legitimately entitled to do. Such obstruction on the part of the preventive staff cannot be said to be in the discharge of their official duties, as they had no power to obstruct, unless they had either seized the articles or arrested the petitioners or attempted to do so, which is not the prosecution case. On the other hand, we know from the evidence of P.W. 1 that after his earlier search of the rickshaw, he was not satisfied that the articles were contraband articles and he wanted a further check at the Customs office. If he suspected them to be contraband articles, he could have seized them straightaway. Without seizing the articles, he cannot take them to the Customs office even for further check. It follows from this that the preventive staff were not engaged at the time of the occurrence in the discharge of any official duty permitted under the Customs Law.
12. In this connection, I may also refer to Section 5 of the Land Customs Act, 1924. Under Section 5 of the said Act, any Land Customs officer, duly empowered by the Chief Customs authority, may require any person in charge of any goods which such officer has reason to believe to have been imported from any foreign Territory to produce the permit granted for such goods and any such goods which are dutiable and which are unaccompanied by a permit can be detained by the said officer. It is not the case for the prosecution that P.W. 1, the Land Customs officer acted under Section 5 of the Land Customs Act or that he called for the production of the permit for the betelnuts or that he detained the goods on the non-production of such permit. Thus P.W. 1 had not acted under Section 5 of the Land Customs Act or detained the goods, but under Section 171 of the Sea Customs Act which has been made applicable to the Land Customs Act by Section 9 of the latter Act. In fact, except under Section 171 of the Sea Customs Act, the preventive staff have no power to stop and search any conveyance. Thus it is clear that the articles had not been detained under Section 5 of the Land Customs Act by P.W. 1, but that he had acted under the Sea Customs Act, in which case he cannot get control of the articles after the search, unless he seizes them which he did not do in the present case.
13. It has to be made clear here that the case of assault or use of criminal force on P.W. I and the other preventive staff was not proved by the prosecution. No doubt the magistrate has referred to the evidence of P.Ws. 1 and 2 that they were 'mishandled' by the petitioners and other members of the crowd. But I have referred to the evidence of P.W. 3 in which he has denied this and he stated that there was no physical assault of any person. It is a pity that the lower Courts did not refer to the evidence of P.W. 3 in that connection. I have pointed out that the obstruction in this case was by the preventive staff in not allowing petitioner No. 1 to unload and take away the articles from the rickshaw which they had every right to do so long as the articles were not seized by the preventive staff. P.W. 1 said that he stood on the gunny bag containing betel-nuts and thereby prevented the petitioners from removing the same. He had no right to do so in his official capacity, unless he had seized the articles. Thus it was P.W. 1 who was acting against the law. It would have been easy for the petitioners to remove the articles, as even according to the prosecution, there were 30 to 40 persons gathered in the place, but they did not do so. This showed that the petitioners really acted within the law.
14. For the above mentioned reasons, I have no hesitation in coming to the conclusion that the petitioners are not guilty under Section 353,I.P.C. Their convictions and sentences are set aside and they are acauitted. Their bail bonds will be discharged.