1. [His Lordship, after setting out the facts and dealing with the first contention, proceeded.] The second contention raised on behalf of the petitioners is that the prosecution of the petitioners is based on evidence collected during the raid carried out on April 2, 1968, and this raid and search of the papers belonging to the accused was illegal because the police had not applied for a search warrant under Section 22A of the Forward Contracts (Regulation) Act, 1952. The learned Presidency Magistrate overruled this contention following an unreported judgment by Mr. Justice Chitale and Mr. Justice Palekar in State of Maharashtra v. Chandulal Kantilal (1964) Criminal Appeals No. 753, 797 to 801 of 1963, decided by Chitale and Palekar JJ., on April 3/6, 1904 (Unrep.) in which the conviction of the accused under Sections 20(e)(i) and 21(f) of the Forward Contracts (Regulation) Act, 1952, was challenged inter alia on the ground that the search made by the police without a warrant issued by the Presidency Magistrate was illegal. On this question Mr. Justice Palekar observed:
It was, however, contended on their behalf that the search itself was illegal, because there was no search warrant issued by the Presidency Magistrate as required by Section 22A of the Act. It is true that under Section 22A of the Act, any Presidency Magistrate or a Magistrate of the first class is empowered by warrant to authorize any police officer not below the rank of Sub-inspector to enter upon and search any place and seize books of accounts and other documents relating to options in goods. It is also not disputed that the officers who raided the place did not have any warrant issued by the Presidency Magistrate. It is, however, to be noted that the particular offences with which these respondents have been charged were cognizable offences under Section 23 of the Act, and, therefore, when a complaint was filed before the investigating officer with regard to the commission of the offence, the investigating officer was entitled under Section 165 of the Code of Criminal Procedure to search any place for anything which the investigating officer had reasonable ground for believing that it was necessary for the purpose of investigation. We do not, therefore, think that the search conducted by the police officers in this case after information was given of a cognizable offence was a search unauthorised by law.
With respect, I am bound by this decision. Apart from that, I am fully in agreement with the view expressed by Mr. Justice Palekar. Section 5(2) of the Code of Criminal Procedure lays down that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 23 of the Forward Contracts (Regulation) Act, 1952 is as under:
Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the following offences shall be deemed to be cognizable within the meaning of that Code, namely :-
(a) an offence falling under Sub-clause (ii) of Clause (a) of Section 20 in so far as it relates to the failure to comply with any requisition made under Sub-section (3) of Section 8;
(b) an offence falling under Clause (d) of Section 20;
(c) an offence falling under Clause (e) of Section 20 other than a contravention of the provisions of Sub-section (3A) or Sub-section (4) of Section 13;
(d) an offence falling under Section 21.
The offences charged against the petitioners in the present cases are, under Section 23, cognizable. There is no provision in the Forward Contracts (Regulation) Act regulating the manner or place of investigating of the offences by the police.
2. It is, however, contended by Mr. Thakkar, the learned Counsel appearing for the petitioners in criminal revision application No. 282 of 1969, by Mr. Desai, the learned Counsel for the petitioners in criminal revision application No. 283 of 1969, and by Mr. Shah, the learned Counsel appearing for the petitioners in the other cases, that the police officer cannot exercise his powers under Sections 157 and 165 of the Criminal Procedure Code and search the place of offence without the authority of a warrant issued under Section 22A. Now Section 22A is as under:
(1) Any presidency magistrate or a magistrate of the first class may, by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search any place where books of account or other documents relating to forward contracts or options in goods entered into in contravention of the provisions of this Act may be or may be reasonably suspected to be and such police officer may seize any such book or document, if in his opinion, it relates to any such forward contract or option in goods.
(3) The provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall, so far as may be, apply to any search or seizure made under Sub-section (3) as they apply to any search or seizure made under the authority of a warrant issued under Section 98 of the said Code.
The contention raised on behalf of the defence is sought to be supported by a decision of a single Judge of the Allahabad High Court in B. & A. P. E. Pvt. Ltd. v. F.M. Commission A.I.R. All. 888 where the learned Judge dissented from the aforesaid decision of Mr. Justice Chitale and Mr. Justice Palekar on the ground that the matter was not discussed in detail and he was unable to endorse the viewpoint expressed by this Court. 'With utmost respect, the learned Judge was not right when he said that the matter was not discussed. The passage from the judgment quoted above shows that this Court has discussed the contention and arrived at its conclusion after taking into consideration the provisions of the Criminal Procedure Code and the Forward Contracts (Regulation) Act.
3. Apart from that, in my opinion, the view expressed in the Allahabad decision is not only contrary to the plain terms of Section 5(2) of the Code of Criminal Procedure but is inconsistent with the aim and object of the Forward Contracts (Regulation) Act in making certain offences under that Act cognizable. The enactment of Section 22A in that Act was clearly intended to enable a Magistrate to issue a search warrant authorising any police officer not below the rank of a Sub-Inspector to enter upon and search any place where books of account and other documents relating to forward contracts or options in goods entered into in contravention of the provisions of that Act may be or may reasonably be suspected to be. But for this section, a Magistrate could issue a search warrant only under the provisions of Sections 96 or 98 of the Criminal Procedure Code which, perhaps, would not cover a case of a place where books of account or other documents relating to forward contracts or options in goods might be or might reasonably be suspected to be. Section 22A must be harmonised with Section 23 which makes the offences mentioned therein cognizable, which means that not only can the police arrest the accused without warrant but investigate the offences under Chapter IV of the Criminal Procedure Code. In the absence of any specific provisions in the Forward Contracts (Regulation) Act preventing the police from exercising their powers of search under Section 157 or 165 of the Criminal Procedure Code and in the absence of any other provision regulating the manner of investigation by the police, contained in the Act, I find it impossible to agree with the view expressed in the Allahabad case.
4. Moreover, Mr. Justice Satish Chandra, who decided that case, with utmost respect, appears to have assumed that Section 22A is a specific provision relating to the search of places by the police, which it is not. As stated above, Section 22A is only an enabling provision enabling the police to arm themselves with a warrant from the Magistrate if the police consider it necessary to avoid allegations being made against them. It confers a power on the Magistrate to issue a warrant which he could not have perhaps issued under the provisions of the Criminal Procedure Code. The learned Judge has referred to a decision of the Supreme Court in State of Rajasthan v. Rehman : 1960CriLJ286 , in which the accused was acquitted because he was prosecuted after a search which was in contravention of the provisions of Section 165 of the Criminal Procedure Code and that acquittal was confirmed by the Supreme Court. A contention was raised before the Supreme Court that the breach of the provisions of Section 165 was merely an irregularity and not an illegality. But that contention was not allowed to be raised because it was not raised in the two Courts below. (See para. 10 at page 213). In Radha Kishan v. State of U.P. A.I.R. S.C. 822, a larger Bench of the Supreme Court held that a search in contravention of the provisions of Sections 103 and 165 of the Code of Criminal Procedure could be resisted by the person whose premises were sought to be searched and because of the illegality of the search, the Court may examine carefully the evidence regarding the seizure, but beyond these two consequences, no further consequences ensued.
5. It is difficult to appreciate how the decision of the Supreme Court in State of Rajasthan v. Rehman could be relied on for the conclusion of the learned Judge that Section 165 of the Criminal Procedure Code was not available for an investigation by the police of an offence under the Forward Contracts (Regulation) Act, 1952. The learned Judge has further referred to Collector of Monghyr v. Keshav Prasad : 1SCR98 , and Dhirendra, Nath v. Sudhir Chandra : 6SCR1001 , which lay down the principles of interpretation of statutes regarding the question as to whether certain provisions are mandatory or directory in the context of the words like 'shall' or 'may', and has held that although the word 'may' is used in Section 22A of the Forward Contracts (Regulation) Act, 1952, it should be construed as a mandatory provision, With the greatest respect, I must say that I cannot follow how this conclusion can be arrived at on the basis of the two decisions of the Supreme Court relied upon by the learned Judge.
6. In my view, therefore, Section 22A of the Forward Contracts (Regulation) Act does not debar the police from exercising the powers under Section 165 of the Criminal Procedure Code.
7. Mr. Thakkar further argued that the decisions of the Supreme Court in Nilratan v. Lakshmi Narayan : 1965CriLJ100 Delhi Administration v. Ram Singh : 2SCR694 , and a decision of this Court in Emperor v. Fernad I.L.R. (1907) Bom. 438 : 9 . Bom. L.R. 695, supported his construction that Section 22A excluded the operation of Section 165 of the Criminal Procedure Code.
8. Now, Nilratan's case was under the Foreign Exchange Regulation Act under which the Director of Enforcement was entitled to retain articles seized by him under Section 19A and it was held that the Magistrate cannot exercise his powers under the Criminal Procedure Code in connection with properties seized under Sub-section (3) of Section 19 of the Act. There is a clear and specific provision under Section 19A with regard to the manner of dealing with articles seized by the Director of Enforcement; and in view of Section 5(2) of the Criminal Procedure Code, it was patent that this specific provision excluded the powers of the Magistrate to order disposal of the articles under the Criminal Procedure Code.
9. In the Delhi Administration's case the Court was concerned with the investigation by the special police officers under the Suppression of Immoral Traffic in Women and Girls Act, 1956, which contains special mandatory provisions regarding the investigation of the offences under that Act and hence it was held that the ordinary police officers could not exercise the powers under the Criminal Procedure Code and investigate the offences under that Act.
10. In Emperor v. Fernad the question was whether the presumption under the Bombay Prevention of Gambling Act was properly raised and this depended on the question as to whether the search was made in accordance with the provisions of that Act which contained a special provision with regard to the search of places where gambling was going on or where gambling was suspected to be going on.
11. All these cases are, in my opinion, easily distinguishable because in these cases there were special provisions under the respective special enactments which would override the genera revisions of the Criminal Procedure Code. That is not the case under the 1, Ward Contracts (Regulation) Act, 1952, which lays down that certain offences are cognizable which necessarily implies that the police can investigate those offences under Chapter XIV of the Code of Criminal Procedure; and there is no provision made in the Act regulating the manner of investigation by the police. Hence the contention of the petitioners that the prosecution of the petitioners is illegal because no warrant was issued under Section 22A of the Act must be rejected.
12. [The rest of the judgment is not material to this report.]