1. This is a common reference made to the Full Bench in relation to nine different matters pending before the learned single Judge of this Court.
2. There is some dispute as to whether all the thirteen raids were conducted on the same day on 8th May 1967 or twelve on 8th and one on 10th May 1967 at the instance of the Forward Markets Commission under the provisions of the Forward Contracts (Regulation) Act, 1952 (LXXIV of 1952) (hereinafter referred to as the Act). This difference in the date of raids has no relevance at this stage. After completing investigation, nine different charge-sheets were filed. Two cases ended in the conviction of two of the accused in each of these cases and the other seven prosecutions resulted in acquittal. Against the convictions in those two prosecutions, Criminal Appeals Nos. 76 and 77 of 1974 were filed in the Sessions Court but they were dismissed. Hence the convicted accused have filed the above-referred two revision applications. Against the acquittal in the remaining seven prosecutions the State has come in appeal to this Court.
3. There is no dispute that all the nine raids in the above cases were conducted without any authorisation and warrant from a Magistrate under Section 22-A of the Act. One of the questions raised before the learned single Judge in all these matters was whether the raids conducted under the normal provisions of the Code of Criminal Procedure, 1898, like Section 165, could be considered legal in view of the introduction of Sections 22-A and 22-B in the Act by the Amendment Act No. LXII of I960. So far as this Court is concerned, the point is already covered by a reported judgment of a learned single Judge of this Court in M.R. Pillai v. M. Vrijbhukhandas : AIR1970Bom324 as also by an unreported judgment of a Division Bench in Criminal Appeal No. 753 of 1963 and others decided on 6-4-1964 (Bom) State v. Chandulal Kantilal. In fact, the learned single Judge relied upon the earlier Division Bench judgment. The learned single Judge before whom these matters came up, however, doubted the correctness of these judgments, particularly because the provisions of Sub-section (2) of Section 5 of the Code of Criminal Procedure were not discussed in either of these judgments. The learned single Judge observed that not only the legal character of the entry, search and seizure required to be considered but the conclusions and observations of the Division Bench in the above-mentioned unreported judgment regarding the raising of the presumption under Sub-sections (1) and (2) of Section 22-B also required to be considered. However, the learned single Judge observed that he was not discussing that point at that stage and did not make a specific reference. This view of the learned single Judge found favour with the Division Bench which had expressly disagreed with a certain view of the Allahabad High Court in State of U.P. v. Chamber of Commerce 1970 All LJ 182. According to the reference order made by the Division Bench of this Court, the amended Act since 20th Dec. I960 presents an exclusive method of investigation so far as effecting raids for the purpose of search and investigation at various places is concerned and the specific provision therein superseded the general provisions of the Code relevant for the purpose. It is in these circumstances that this reference has been made by the Division Bench without actually framing the point for our consideration, but making sufficiently clear observations indicating the point that requires to be decided.
4. Before we state the point for our opinion, it is necessary to point out that we are inclined to frame two points and not one. If the entry, search and seizure under the provisions of the Code of Criminal Procedure are to be held legal and the provisions of Section 22-A of the Act are to be treated as supplementary, it is inevitable that the whole scheme of the amended Act is considered with all its possible ramifications. If raids could be conducted either with a warrant under Section 22-A of the Act, or with a warrant from a Magistrate under Section 96 of the Code of Criminal Procedure or by a Police Officer under Section 165 of the Code after recording the grounds of his belief, it will be necessary to point out what consequences are to follow as a result of these raids. In the circumstances, we frame the following two points for our decision:
1. Whether entry, search and seizure under the general provisions of the Code of Criminal Procedure, viz., under Section 165, without magisterial authorisation, is legal and valid despite the introduction by statutory amendment of a specific section requiring magisterial authorisation for entry, search and seizure, viz., Section 22-A, of the Forward Contracts (Regulation) Act, 1952?
2. If legal and valid, can the consequences mentioned in Section 22-B, Sub-sections (1) and (2), follow even where the entry, search and seizure are conducted under the provisions of the Code of Criminal Procedure?
5. We propose to discuss the relevant provisions of the Act and the Code in the first instance and draw what possible conclusions we think ought to be drawn. Thereafter we will refer to the case law that has been cited before us. The Act came into force on 24th August 1953. It did not contain the present provisions of Sections 22-A and 22-B. In fact, there has been an exhaustive amendment of the Act by the Amendment Act No. 62 of 1960. We are not much concerned with the other amendments, but the two sections namely, Sections 22-A and 22-P, have introduced some provisions contrary to the normal provisions of the Evidence Act. Before these sections became a part of the Act, investigation in relation to the offences under the Act was carried out under the Code of Criminal Procedure, Even now, the investigation is being carried out under the Code. That is because Sub-section (2) of Section 5 of the Code provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, namely, the provisions of the Code, 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. The normal law available for investigation, inquiry, trial or otherwise dealing with the offence, whether under the Indian Penal Code or any other Act for the time being in force is the Code of Criminal Procedure. However, the Code is always subject to any other enactment for the time being in force regulating the manner or place of investigation, inquiry, trial or otherwise dealing with such offences. After about six years of implementation of the Act, the Union Government discovered that offenders under the Act are not being brought to book in a manner they ought to be. There are certain infirmities in the prosecution evidence which are many times incurable. Though, therefore, there appeared to be a good case against an accused, the case used to end in acquittal. The main hurdle faced was the proving of the document even though seized from the custody of the accused. If the document contained incriminating material which could bring home the guilt, the difficulty felt was to prove it. Ordinarily the accused person would not co-operate with the prosecution, and if the writer of the document or the account could not be traced, the handwriting could not be proved at all. This and some other were the infirmities experienced by the Union of India while implementing the provisions of the Act over a period of six years. The Central Legislature, therefore, felt that this situation ought to be improved. The Act was, therefore, exhaustively amended. While the Bill was introduced, the Statement of Objects and Reasons as usual indicated why the amendment was pressed. It is well known that very limited use can be made of the Statement of Objects and Reasons for the actual interpretation of a statute. When the provisions are clear, they alone will be taken into account. However, even for the purpose of reading the clear provisions of the statute, it is worthwhile to remember the background of the amendment, the mischief that was sought to be eradicated and the intention in introducing the additional provision. In the Statement of Objects and Reasons of this amending Bill, one of the observations made is that persons indulging in illegal forward trading cannot be prosecuted for want of adequate documentary evidence. Clause 20 of the Notes on Clauses specifically refers to the contents of the present Sections 22-A and 22-B. The note says that the amendment authorises police officers not below the rank of Sub-Inspector to enter and search any place and seize documents in pursuance of a warrant issued by a Presidency or a First Class Magistrate and that any books of account or other documents seized in exercise of this power shall be prima facie evidence of the transactions recorded therein. The only point that may be remembered at this stage is that the Legislature was trying to supplement the original provisions of the Act with a view to facilitate the proving of the evidence collected and to do away with the disability of not being able to prove the documents and accounts even though seized from a proper place and proper custody. Those documents were to be given the status of a prima facie evidence, so that the handicap felt earlier was got rid of.
6. Merely bearing in mind this background, we may now consider the two relevant sections which call for interpretation. The two sections are as follows:
22-A. Power to search and seize books of account or other documents.- (1) Any Presidency Magistrate or a Magistrate of the first class may, by warrant, authorised 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 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.
(2) The provisions of the Code of Criminal Procedure, 1898, shall, so far as may be apply to any search or seizure made under Sub-section (1) as they apply to any search or seizure made under the authority of a warrant issued under Section 98 of the said Code.
22-B. Presumptions to be drawn in certain cases - (1) Where any books of account or other documents are seized from any place and there are entries therein, making reference to quantity, quotations, rates, months of delivery, receipt or payment of differences or sale or purchase of goods, or option in goods such books of account or other documents shall be admitted in evidence without witnesses having to appear to prove the same; and such entries shall be prima facie evidence of the matter, transactions and accounts purported to be therein recorded.
(2) In any trial for an offence punishable under Section 21, it shall be presumed until the contrary is proved, that the place in which the books of account or other documents referred to in Sub-section (1) were seized, was used, and that the persons found therein were present for the purpose of committing the said offence.
There is not much difficulty in understanding what the sections are. Sub-section (1) of Section 22-A quoted above permits a Presidency Magistrate or a Magistrate of the First Class to authorised a Police Officer not below the rank of Sub-Inspector with a warrant to effect entry upon and search any place where books of accounts or documents relating to forward contracts or options in goods entered into in contravention of the provisions of the Act may be reasonably suspected to be. This is the provision relating to a Magistrate who is authorised to issue a certain type of warrant for a certain purpose. The officer who could be authorised to operate this warrant should not be below the rank of Sub-Inspector. When the officer is so armed with a warrant or authorisation, he may effect the entry, cause the search and may seize any such document or book which, in his opinion, relates to any such forward contract or option in goods. When the officer goes with a warrant, he is to attach the accounts and documents if only they answer the description of the second part of the clause. Sub-section (2) further lays down that the provisions of the Code of Criminal Procedure shall, so far as may be, apply to any. such search or seizure made under Sub-section (1) as they apply to any search or seizure made under the authority of a warrant issued under Section 98 of the said Code. The provisions of the Code of Criminal Procedure are thus made applicable as if this was a warrant under Section 98 of that Code.
7. The provisions of Section 22-B which follow this section again consist of two Sub-sections. Sub-section (1) of that section provides that where any books of account or other documents are seized from any place and they contain entries making reference to quantity, quotations, rates, months of delivery, receipt of -payment of differences or sale or purchase of goods, or option in goods, such books of account or other documents shall be admitted in evidence without witnesses having to appear to prove the same and such entries shall be prima facie evidence of the matter, transactions and accounts purported to be therein recorded. At this moment we will connect the provisions of Section 22-B with the provisions of Section 22-A, and we will merely try to understand the contents or the effect of these provisions. When documents are seized as described in this Sub-section and they contain entries as described in that sub-section those documents and accounts are to be merely produced in a Court of law and they become automatically part of the evidence. In other words, the requirement to prove a document which is a very normal and common requirement of the Evidence Act except where the party admits the same, has been got over by this provision. The documents seized in the manner indicated and the entries relating to the relevant subject-matter described in this section become automatically evidence in the case. Not only they become proved evidence in the case but they are raised to the status of prima facie evidence of the matter, transactions and accounts purported to be there-in recorded. This is undoubtedly a drastic provision. It enables the prosecution to get over the requirement of proof in relation to certain documents. It also enables the prosecution to treat them as prima facie evidence of the matter, transactions and accounts recorded in those documents. Sub-section (2) goes a step further. If this evidence can lead to the conclusion, together with the other evidence, that the prosecution may lead explaining the entries and the implications thereof, that an offence has been committed under the Act, a further presumption has to be raised. Under Sub-section (2) in any trial for an offence punishable under Section 21, it shall be presumed until the contrary is proved, that the place in which the books of account or other documents referred to in Sub-section (1) were seized, was used and that the persons found therein were present for the purpose of committing the said offence. The evidence collected in the manner stated in Sub-section (1) becomes evidence and is prima facie evidence of the entries and it has to be presumed that the place where the documents were seized was used for the commission of the offence and the persons found therein are presumed to be present for the purpose of committing the offence. This presumption is to prevail until the contrary is proved by the accused persons. The total effect, therefore, is that not only the proving of the commission of the offence is facilitated by eliminating one part of the prosecution evidence, but the moment the offence is shown to have been committed from the documents seized, the persons present at the time of the raid would at once be presumed to be guilty until they prove to the contrary. These two Sub-sections of Section 22-B do contain provisions which are rather drastic and are contrary to the normal approach in proving criminal offences.
8. The main question that is now being posed for our consideration is whether this new approach under the two added sections is the only manner in which entries, searches and seizures under the Act ought to be conducted during the investigation of the offence, or it is permissible to have resort to the provisions of the Code of Criminal Procedure even though these provisions exist on the amended statute. One of the questions posed on behalf of the prosecution is that the officer may come to know the evidence which is on the verge of being destroyed. What should he do in that case? Should he try to find out a Magistrate who will issue a warrant, and if that takes an unduly long time, will he permit the evidence to be destroyed? Or under Section 165 of the Code of Criminal Procedure having formed the requisite opinion as required by that section and having recorded his reasons for the same, should he at once rush to the place and raid it, search it and seize the documents or other evidence which may be available? In other words, could it be said the two added sections now provide the exclusive method of investigation so far as conducting raids and collecting evidence is concerned? The same proposition could be stated by saying that the provisions of Sub-section (2) of Section 5 of the Code now begin to operate and the special enactment having provided regulation of the manner or place of investigation or inquiry, the other provisions of the Code would not be available.
9. In our view, if a realistic approach is made to the entire process of investigation and the various possible situations that may arise, it would at once be clear that the two added sections to the Act do not and cannot be intended to provide the only exclusive method of effecting searches and seizures. Before we go to the provisions of the Act, let us consider how the Code of Criminal Procedure itself provides a machinery for effecting searches and seizures, in the discussion before us, as also in the major portion of the discussions that we find in the earlier judgments, Section 165 is the only section referred to. However, the total scheme of effecting searches and seizures under the Code is not confined to Section 165. The normal manner in which searches are to be effected is provided by Section 96 onwards of the Code. The present offences relate to 1967 and investigation was carried out from and after 8th May 1967. The old Code would, therefore, be relevant for this case. It is for the Court primarily to issue warrants for searches under the various circumstances mentioned in Section 96 or Section 98. Section 98 deals with specific types of cases, but Section 96 is more or less general in its terms. One of the reasons why the Court will issue a search warrant under Section 96 is where the Court considers that the purposes of any inquiry, trial or other proceeding under the Code will be served by a general search or inspection. If there is reasonable belief that some kind of evidence is likely to be available in a place, in the general interest of the investigation as such, the warrant can be issued. Under Chap. VII of the Code searches and seizures are always based upon the issue of a warrant by a Magistrate. Chapter XIV deals with the information to the police and their powers to investigate. For the purpose of investigation the offences under the Indian Penal Code are classified as cognizable and non-cognizable. So far as cognizable offences are concerned, any officer-in-charge of a Police Station is entitled to commence the investigation at once as soon as he gets information thereof. When information is, however, given of a non-cognizable offence, he has merely to enter in a book kept for that purpose the substance of such information and refer the information to the Magistrate. No Police Officer shall investigate a non-cognizable offence without the order of a Magistrate of the First Class or Second Class having power to try such case or commit the same for trial, or of a Presidency Magistrate. That is the provision of Sub-section (2) of Section 155. Unless, therefore, an order of a Magistrate as described in this sub-section is obtained and he must be a Magistrate who has the power to try the case, the police officer will not be able to investigate the non-cognizable offence. Once, however, the order of the Magistrate is obtained, the police officer is entitled to exercise the same powers in respect of the investigation as an officer-in-charge of a Police Station may exercise in a cognizable case except that he shall not arrest any person without a warrant. Short of the power to arrest, the investigating officer in a non-cognizable case is on par with the investigating officer in a cognizable case provided he has obtained a warrant from the Magistrate. The subsequent sections merely lay down the powers of investigating officers. Among those powers, we have Section 165 dealing with searches by police officers. If a police officer in charge of a police Station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the Police Station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing so far as possible, the thing for which search is to be made, search, or cause search to be made for such thing in any place within the limits of such station. Prima facie, therefore, the provisions of Sub-section (1) of Section 165 can be described as emergency provisions. Unless the officer is of the opinion that the thing desired for the purpose of investigation must be obtained without undue delay, he has to resort to the provisions of this Sub-section. Normally he would take a warrant from a Magistrate for search of the place; but where he has first a reasonable ground for believing that anything necessary for the purpose of investigation is likely to be found at a particular place and thereafter finds that delay may cause disappearance of that piece of evidence, he has to exercise these powers after recording the reasons thereof. There is, therefore, no doubt that a police officer is permitted to act on his own without a warrant for the purpose of effecting search and seizure once the conditions of Section 165 are fulfilled. Otherwise he has to obtain the Magistrate's warrant and effect the search of the place. A common feature of these two provisions is that in one case if the Court has reason to believe or the Court is satisfied that it is necessary in the general interest of investigation that a warrant should issue, a warrant comes to be issued under Chapter VII. In the other case it is the police officer who has reasonable ground to believe that search must be effected at a particular place for obtaining some evidence relating to the offence under investigation and he is further to be satisfied that delay will not be helpful in the proper investigation.
10. With these provisions of the Code, let us now look at the added provision in the Act. The requirement of the Code in a sense is that a general satisfaction is enough for issuing a warrant. It is not necessary to pinpoint the type of evidence that is likely to be obtained. An expectation that something useful will be found and a broad satisfaction that that is so is enough. If we look at the added Section 22-A which also deals with the same subject of issuance of warrant by the Magistrate, we find that there is a distinct difference between the approach of the Code and the approach of the Act. In the very first clause of Sub-section (1) of Section 22-A the language used is that a Magistrate 'may' authorised a police officer not below the rank of Sub-Inspector. On the plain wording of Section 22-A (1), the Magistrate could issue the authorisation on his own. He could also issue the authorisation on a certain representation made by the police officer. Now, this warrant which is being issued under Section 22-A further requires before its issuance that the Magistrate has to nominate a particular place and the nature of the evidence that is likely to be obtained in that place. The warrant not only describes the place but the type of evidence that is likely to be obtained in connection with a particular offence. This view which the Magistrate forms could be based upon his own information leading to suo motu action or upon the representation made by the police officer investigating the crime. This is the first requirement before a warrant is issued. Then again, if such satisfaction is not reached under the representation of the police information, can the Magistrate refuse to issue a warrant under Section 22-A? If the spirit with which this section has been introduced is to be faithfully implemented, we are inclined to hold that the clause 'may ...authorised' must be deemed to give discretion to the Magistrate either to issue a warrant or to refuse to issue it. If the Magistrate is not inclined to issue a warrant because he is unable to be satisfied of the circumstances under which that warrant is to be issued and the police officer thinks that there is reasonable belief of a certain type of evidence which will disappear, could he not revert back to the provisions of the Code and effect the raid and seize the evidence? Till the amendment of the Act evidence was being collected only under the provisions of the Code and the prosecution was undertaking the responsibility of proving the same under the provisions of the Evidence Act. A short-cut is now provided by this added provision and the intervention of the Magistrate has been made a condition precedent before a warrant is issued. It is not enough that the Magistrate issues the type of warrant which we have described, but even while effecting search and seizure, the section requires the police officer to seize only such books of account and other documents, if in his opinion, they relate to such forward contracts or options in goods. The Magistrate's prima facie satisfaction is the condition precedent to the issuance of the warrant and forming of such opinion by the police officer actually effecting the seizure that the evidence collected relates to any such forward contract or option in goods. The second condition is to be fulfilled before the actual seizure takes place. There is, therefore, considerable difference between the nature of the seizure effected under the Code and the nature of the seizure effected under the additional provision of the Act. Since the Magistrate has discretion to issue or refuse to issue a warrant, could it be said that the moment the Magistrate refuses to issue a warrant, there shall be no investigation at all of that particular offence even though the police officer has reasonable ground to believe that evidence is likely to be obtained? The Legislature seems to be anxious to bring within the object of this Act as many more accused persons as possible. It is with that object that the additional facility has been provided by Sections 22-A and 22-B. If they are to be effective, could it be said that the Magistrate forming a certain opinion can thwart the investigation and prosecution? Primarily it is for the police officer to investigate the crime though under the supervision of the Magistrate. It is again for the police officer to form an opinion before charge-sheets are filed. We do not, therefore, think that the provisions of Section 22-A were added with a view to stifle the prosecution. They are to aid the prosecution. This assistance which is additionally given is in the form of permitting certain additional facilities in the matter of proof. Those facilities, in our view, are incorporated in Section 22-B. Since these two sections provided a whole scheme which has been subsequently added to the Act, in our view, it would now be worthwhile to analyse the provisions of Section 22-B and see how this approach seems to be logical.
11. Under Section 22-B which we have already analysed earlier it is possible for the prosecution to merely present the documents and treat them as evidence. No witness is to be called to prove them. Those documents are again prima facie evidence of the matters, transactions and accounts recorded in them. Since these consequences are serious, the Legislature thought fit that the discretion of a police officer must be controlled by the satisfaction of the Magistrate. The sanctity of the raid conducted under Section 22-A is based upon the issuance of a warrant by the Magistrate. If with the satisfaction of the Magistrate a warrant relating to a particular place for the purpose of collecting a particular type of documents is issued and the same are found, there seems to be some safety in permitting them to be exhibited without further proof, and reading the entries as depicting certain transactions which they prima facie indicate. In our view, therefore, the provisions of Section 22-B can be availed of by the prosecution only if the search is effected under a warrant issued under Section 22-A. It is true that like many other Acts the language of Section 22-B is not precise. It does not refer to the effecting of search and seizure on the basis of a warrant issued under Sub-section (1) of Section 22-A. If any instance is to be taken, the provisions of Sections 6 and 7 of the Bombay Prevention of Gambling Act, 1887, would be in point. However, there are various ways in which the Legislature can express itself and it would be the endeavour of the Court to bring out the intention of the Legislature by reading of all the provisions of the Act together in a harmonious manner.
12. Pausing here for a minute, let us consider what is the general scheme of the Act. The Code of Criminal Procedure was found wanting in lending sufficient assistance to bring the offenders to book. A new scheme which has certain drastic consequences is, therefore, introduced. While doing so, the Legislature is aware that unless some safety is introduced in the implementation of these provisions, it would not be worthwhile to permit the dire consequences to follow only upon police investigation. This approach of the Legislature is not new. All the offences relating to corruption were once upon a time non-cognizable. When the prevention of Corruption Act was brought on the statute book, certain offences were made cognizable which were otherwise non-cognizable. A presumption is also permitted to be raised under Section 4 of that Act under certain circumstances. There also it is the permission of the Magistrate who has to satisfy himself that is introduced as a part of safety for the Government officer who could otherwise be harassed without any reason. Therefore, a machinery of this type is provided where in one part the protection to the citizen is taken away but some kind of safety measure has been provided to prevent the misuse of the additional provision. Looking at these sections therefore, from that point of view, they appear to represent one whole scheme and cannot be read in isolation. We will shortly point out the consequences of reading them in isolation. Looking at the two sections at the moment as a whole in contrast to the normal provisions of the Code of Criminal Procedure relating to search and seizure, we are inclined to hold that the consequences of Section 22-B are made dependent upon the search being effected under the provisions of Section 22-A. It is true that the language of these two sections is slightly different than the language of Sections 6 and 7 of the Prevention of Gambling Act. However, the Legislature has expressed itself in these sections in a slightly different manner. The warrant under Section 22-A which the Magistrate has to issue is a specific warrant. It relates to a place and describes the type of documents and the type of evidence that are likely to be available. The words used are that the warrant may be issued to an officer not below the rank of Sub-Inspector to enter upon and search 'any place' where the books etc. are likely to be found. The words 'any place' in one sense permit any kind of place to be mentioned, but it must be a positive place. This expression, though in appearance general, requires for the purpose of a particular warrant a particular place or one or two places specifically to be described which are to be raided. Under Sub-section (1) of Section 22-B the language used again is:
Where any books of account or other documents are seized from any place and there are entries therein' etc. In our view, the expression 'any place' used in Sub-section (1) of Section 22-B refers to the very place which was incorporated in the warrant under Sub-section (1) of Section 22-A. Unless, therefore, the documents to be used are found in that place which are described in the warrant issued under Section 22-A, the facility of merely producing them and calling them evidence under Sub-section (1) of Section 22-B is not available to the prosecution. We will presently point out that unless we read these two sections in this manner, the consequences might follow which would never be expected in a criminal trial.
13. Let us now test whether this could be the correct approach. We have now to take into account the provisions of Sub-section (2) of Section 5 of the Code as also of Sections 155 and 165 of the same. We have indicated earlier that the Legislature wanted to get over a certain defect or disability which was experienced after six years of implementation of the Act, and, therefore, the provisions of Sections 22-A and 22-B were added. They could not be the provisions in substitution of the provisions of the Code because in an emergency where evidence is likely to disappear unless prompt action is taken the case will have to be allowed to be thwarted. That was the consequence which the Legislature never intended, because it wanted to bring into the purview of the Act more persons who are guilty of committing the offence. Let us now consider whether Section 22-B could be read in isolation. If the consequences mentioned in that section can take place in respect of any type of seizure, a police officer investigating a cognizable offence can always effect a raid under Section 165 of the Code after recording his own reasons and collect the documents concerned. If Section 22-B is to be read in isolation, the documents so collected could not only be produced but would be deemed to have been proved without further proof. Not only that but they will be prima facie evidence of the entries, and if those entries relate to an offence, even the presumption under Sub-section (2) of Section 22-B will have to be drawn in respect of the place and the persons. If this is so, when a cognisable offence is being investigated by a police officer under Chapter XIV of the Code, what was the propriety of enacting Section 22-A? The learned Additional Government Pleader, Mr. Mor, for the State argued that the operation of Section 22-A should be limited to non-cognizable offences. Under the Act all offences are not cognizable. While by the Amending Act of 1960 the number of cognizable offences undoubtedly has been increased, initially the offences under Sections 20(i) and 21 alone were cognizable. After the amendment of 1960, the offences now made cognizable are those under Section 20(a)(ii) in so far as they relate to the failure to comply with any requisition made under Sub-section (3) of Section 8; Section 20(d);. Section 20(e) other than a contravention of the provisions of Sub-section (3)(a) or Sub-section (4) of Section 15; and Section 21. Even though the number of cognizable offences is now increased, there still remain other offences under the Act which are not cognizable. Mr. Mor, therefore, argued that we should confine the operation of Section 22-A to non-cognizable offences. If in the case of a non-cognizable offence, a warrant is obtained under Section 22-A and a search is effected under that warrant, the provisions of Section 22-B should be attracted. We are unable to appreciate this argument. If there is a non-cognizable offence even under the Act the police officer will have to first approach a Magistrate under Section 155(2) of the Code for the purpose of obtaining an order for investigation. Without reference to Section 155 and an order under Sub-section (2), the officer will not be able to investigate a non-cognizable offence at all. Even after the amendment, nothing is provided in the Act which covers this aspect of law. The moment a police officer obtains an order of the Magistrate under Sub-section (2) of Section 155, he has all the powers of investigation which an officer investigating a cognizable offence has except for the power to arrest without warrant. If that is the effect of Sub-section (2) of Section 155, the investigating officer in a non-cognizable offence is to be on par with the investigating officer in a cognizable offence. He may not be able to arrest a person without a warrant but he will undoubtedly be in a position to exercise the powers under Section 165 or the powers under Section 96 with the aid of the Magistrate which requires much less satisfaction than for a Magistrate issuing a warrant under Section 22-A of the Act as we have already indicated. If an officer investigating a non-cognizable offence finds himself in the same position in which an officer investigating any cognizable offence might find himself under Section 165 and exercise these powers, he would be within his right in collecting evidence in the form of documents and accounts. If Section 22-B is an independent section which applies to any document that is produced by search even under Section 165 of the Code, why would the documents collected by this officer investigating a non-cognizable offence not be admissible as such. Not only that, they will have to be deemed to be proved. The entries will have to be deemed to be prima facie evidence of the offence, and if further evidence is led, even the presumption under Sub-section (2) of Section 22-B will have to be raised. If in the case of a cognizable offence as well as a non-cognizable offence, Section 22-B could be serviceable in this manner, Section 22-A becomes absolutely redundant. Could the Legislature have intended such consequences? The obvious answer, therefore, is that where investigation has taken place only under the Code of Criminal Procedure with the help of Section 165 of the Code, the cases will still be tried as before the amendment and the prosecution will have to undertake the burden of proving each document that is produced. If on the contrary in the circumstances permitted by Section 22-A and with the help of a Magistrate's warrant a raid is effected and documents are seized, they will get the status of collecting evidence under that section which invite the application of the drastic provisions of Section 22-B. So read, the whole scheme becomes intelligible and logical. No provision of the Act is redundant. The interpretation which we have put serves all possible contingencies. If a Magistrate feels that he is not satisfied then he may not issue a warrant, and in that event the police officer may rush and raid the place with the aid of Section 165 of the Code and take the chance of collecting evidence with the added responsibility of proving it. This he could do in an emergency even where the Magistrate would have been satisfied if the matter was presented to him but there is no time to do so. To prevent the disappearance of the evidence is of primary importance. Unless evidence is collected no case can be proved in a Court. There would ordinarily be two contingencies: one is that the evidence is on the verge of being destroyed and quick action must be taken and the only way is to act under Section 165 of the Code. The other contingency is to approach a Magistrate and the loss of time might cause the disappearance of the evidence. Which is better? We think that the officer in his discretion might rush to prevent the disappearance of the evidence and then try to collect further evidence to prove the entries that he is able to collect. Looked at from any point of view, it seems to be rational to think that these two provisions, namely, the provisions of the Code relating to search and seizure, are not superseded by the provisions of Sections 22-A and 22-B of the Act. In the language of Sub-section (2) of Section 5 of the Code we do not think that the provisions of Section 22-A of the Act either regulate the manner or place of investigation as required by that provision. The language of Sub-section (2) of Section 5 merely says that all offences under any other law shall also be investigated according to the same provisions of the Code but subject to any enactment for the time being in force regulating the manner or place of investigating etc. The important clause is 'subject to.' But for Section 22-A of the Act, a search with a warrant which eliminates the requirement of proving the document would not be possible. Such a facility is not available under the Code because the investigation relating to an offence under any other Act is subject to the provisions of that Act. It is thus a supplementary provision which adds to the facility of investigation. It is in part a drastic provision which eliminates proof of certain documents but is saddled with the safety catch of satisfying a Magistrate for the purpose of issuing such a warrant. In our view, therefore, the entry, search and seizure under the general provisions of the Code of Criminal Procedure without the magisterial authorisation as contemplated by Section 22-A of the Act is thoroughly legal and valid. However, when a seizure is so effected and the documents so seized are produced, they will have to be proved in due course according to the provisions of the Evidence Act. These two provisions are not inconsistent with each other so as to conclude that one is made in supersession of the other. On the contrary, they are complementary. In an emergencya choice shall be made for preserving the evidence and where there is time and it is possible to satisfy a Magistrate to issue a warrant, the added facility of producing documents without proof can be availed of.
14. If this is the correct approach to the whole provision, can the discussion of the second point which we have permitted be avoided? Having found that it is perfectly legal to effect searches and seizures under the Code as well as under the Act, is it possible now to eliminate the possible consequences that either of the seizures lead to. The scheme of the added section is so inter-connected that unless we have a search and seizure under the Act, the consequences of the other provisions of the Act would not be permitted to follow. We have already said that if the same consequences were to follow even upon a raid under Section 165 of the Code, the entire provision of Section 22-A of the Act will be redundant and meaningless. In this view of the matter where the raid is conducted under the provisions of the Code and certain documents are seized, it is not possible to claim the privileges under Section 22-B of the Act in respect of such evidence. Neither the documents will be held proved bodily without further proof nor a presumption will be drawn that the particular place where they were found was used for the commission of the offence or the persons who were present at the time of the said raid were present for the purpose of committing that offence. In other words, all the issues that may arise in that litigation will have to be proved by the prosecution in the manner in which the normal case is proved under the Code of Criminal Procedure.
15. We will now refer to an earlier decision of the Division Bench of this Court in State v. Chandulal Kantilal Criminal Appeal No. 753 of 1963 and several others, decided on 6th April 1964) by Chitale and Palekar JJ. The judgment of the Court has been dictated by Palekar J. (as he then was), and the judgment in part holds that a search and seizure effected under Section 165 of the Code is valid in spite of the presence of Sections 22-A and 22-B of the Act. With that part of the reasoning we are in agreement. However, the learned Judges have observed in the latter part of the judgment that the consequences of Section 22-B (1) of the Act are permissible even where the documents produced are seized by a police officer under the provisions of Section 165 of the Code. As a logical consequence of what we have concluded above, it is not possible for us to agree with this reasoning. In fact, we have expressly pointed out that such an approach will render Section 22-A completely redundant. With respect, we would point out that that conclusion of the Division Bench is not correct and must be deemed to have been overruled by our discussion above. In a subsequent judgment, a learned single Judge of this Court in M.R. Pillai v. Vrijbhukhandas : AIR1970Bom324 has come to the conclusion that a raid conducted under Section 165 of the Code is not unlawful in spite of the presence of the added Section 22-A in the Act. The learned Judge also referred to Sub-section (2) of Section 5 of the Code in passing but has not discussed how this added provision is not in the nature of regulating the manner or place of investigation. A Division Bench of the Allahabad High Court, however, in State of U.P. v. Chambers of Commerce 1970 All LJ 182 has come to the same conclusion to which we have come so far as the legality of a search and seizure under Section 165 of the Code is concerned. This judgment overrules the earlier single Bench judgment of that Court in Bullion and Agricultural Produce Exchange Private Ltd. v. Forward Markets Commission : AIR1968All338 . We are in respectful agreement with this Division Bench judgment.
16. Mr. Mohta, learned Counsel for the accused, cited before us several judgments where the principle laid down is that if a new statute creates as a new obligation and provides a method of enforcing it, it is that method alone which must be followed and no others. This proposition he developed for telling us that under the amended Act if a raid is to be conducted, it must be done as provided by Section 22-A and in no other. He relied upon a number of judgments for this proposition. But we find that the provisions interpreted in those judgments are very much different. The principle which he evolved is also correct, but in our view, it is not correct to say that it applies to the facts and circumstances of this case. For instance, in an old judgment of this Court in Pursushottam Devji v. Emperor AIR 1944 Bom 247 the question related to the disposal of property. Under the Defence of India Rules, 1939, by Rule 81(4) it was provided that if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty. The learned Judges were called upon to consider the provisions of the Bombay Retail Trade Control and Licensing Order relating to the forfeiture of goods. The relevant rule required that the order must so provide, and if it did, the Court had no choice but to forfeit the goods to His Majesty the moment the offence is held proved. So far as the Order under consideration was concerned, there was no such provision for forfeiture. Since the Order did not provide for any such consequence, the question arose whether on conviction the Magistrate could still forfeit the goods under Section 517 of the Code of Criminal Procedure. The learned Judges pointed out that in the face of the language of the rule which requires the order to so provide, the provisions of Section 517 must be deemed to have been abrogated. This is quite logical in the sense that a penal consequence which is required to be provided by the statute or the relevant provision, if not so provided, could not be brought out by reference to the general provisions of the Code of Criminal procedure. Several other judgments incorporating this approach either under the Income-tax Act or the Customs Act were cited before us. We do not consider it necessary to refer to each one of them. It will be enough to point out that conducting investigation in this way or that cannot be compared with the obligation like penal consequences in relation to an offence, The principle laid down in this judgment is, therefore, not relevant for our purposes.
17. This being our view, we answer point No. 1 in the affirmative and point No. 2 in the negative. All the cases will now be listed before an appropriate Bench for further hearing and disposal according to law.
18. At this stage Mr. Mohta on behalf of the accused persons states that though the Supreme Court Rules are amended, it is not very clear whether the pending matters will be governed by the amended rules or the earlier rules. By way of abundant caution, he applies for a certificate of fitness to appeal to the Supreme Court under Sub-clause (c) of Clause (1) of Article 134 of the Constitution, the Certificate asked for is refused.