1. The applicants Kumari Shanta Apte and her brother Baburao were convicted off an offence under Section 13(a) of the Central Provinces and Berar Prohibition Act by Shri R. G. Bajpai, Magistrate, first class, Nagpur, and each of them was sentenced to pay a fine of Rs. 500/- or in default to undergo simple imprisonment for three months. Kumari Shanta Apte was also charged under Section 332 of the Indian Penal Code, but was acquitted of that offence. In appeal, the Sessions Judge, Nagpur, affirmed the conviction of each of the applicants under Section 13(a) of the Prohibition Act but reduced the fine to Rs. 250/-.
2. The relevant facts are as follows : Kumari Apte, who is a film actress and who acts on the stage, visited Nagpur in April 1954, for acting in certain Marathi dramas. She was accompanied by her brother and private secretary Baburao. While at Nagpur, she stayed at the Mount Hotel.
3. Upon receiving information that the applicants were taking liquor without holding a permit under the Prohibition Act and were also in possession of liquor, the Town Inspector Mahajan accompanied by Station Officer Ghatpande of Sitabuldi police station went to the Mount Hotel at about 3-30 A. M. on 7-4-1954 for making a search of the suite of rooms in the occupation of the applicants. They were accompanied by some police constables.
At about 4-30 a. m. the police party tried to get the door of the sitting room of the applicants' suite opened with the help of the manager Ramlingam (P. W. 6) and other persons. They also knocked at the door several times and called out to the applicants asking them to open the door. As, however, they failed to open it, the police party forced open the door and went inside. The applicants then came into that room and questioned the authority of the police party to make the search without a warrant.
It may be mentioned that the police party wanted to search the bed-room after entering the sitting room. According to the prosecution, the applicants obstructed the police party from searching the premises, bodily pushed some of them and caused an injury to Town Inspector Mahajan. Further, according to the prosecution, Kumari Apte assaulted Ghatpande, the Station Officer, by flinging a chappal at him.
4. The applicants denied having obstructed the Station Officer or assaulted any police officer or having used any force whatsoever against them. They challenge the authority of the police officers to make the search without a warrant of the magistrate. Kumari Apte in addition pleaded that a false case had teen fabricated against her as some police officers were denied entry without ticket at the dramatic performances in which she was taking part. Baburao pleaded that he was falsely implicated with a view to defame him,
5. A long argument was addressed before me regarding the facts of the case. But it seems to me unnecessary to advert to it, because in my opinion the search was illegal and therefore the acts attributed to the applicants do not amount to an offence under Section l3(a) of the Prohibition Act. Section 13(a) of the Act reads as follows:
Whoever assaults or obstructs:(a) any officer or person exercising under this Act, ....
It will thus be clear that this provision would apply only when the person who is assaulted or obstructed is exercising powers under this Act. The source of authority of the police officers to make a search is Section 40 of the Act. It may be mentioned that Section 67 of the Act provides that except as otherwise expressly provided in the Act. the provisions of the Code of Criminal Procedure 1898, shall not be affected. This would mean that normally a search can be made by a police officer only after obtaining a search warrant from a competent Magistrate.
The exception thereto is contained in Section 40. Section 40, being an exception to the general rule, must necessarily he strictly complied with. One of the requirements of the Section is that before an officer competent to make a search without a warrant proceeds to make a search he must record the grounds for his belief that he has reason to believe that an offence in respect of any liquor punishable under Chapter III has been committed and that the delay occasioned by obtaining a search warrant under Section 38 will prevent the execution thereof. Unless he does that, he cannot exercise his powers under Section 40 of the Act. In the instant case, the only document which has been brought to my notice is a copy of the rojnamcha sanha (Ex. P-3) which is reproduced in full below:
Sanha No. 630. D/- 7-4-1954, P. S. Sita, buldi, Nagpur, filed in Criminal Case No. 1044 of 1954.
Nature of report : - No. 630. Coming back of the City Superintendent of Police to the P. S. after Gast checking. Sending of the Station Officer, the Town Inspector along with the police party, on receipt of information about (drinking) liquor secretly, in a police van (bus).
Particulars of report : - It is reported at 3-30 hours that in the marginally noted Sanha it has been entered that the City Superintendent of Police along with the Town Inspector 'B' division, the Station Officer Shri Ghatpande and the Sub-Inspector Shri Shrivastava had gona in a police bus for Gast checking. They came back after gast checking at the aforesaid time and soon after on receipt of information that some persons were in illegal possession of liquor and were also drinking liquor, the Town Inspector along with the Station Officer and the police party left for the spot in a police bus. And as it was night time (and) there was no time, search warrant could not be obtained (before going to the spot).
Head Constable. D/- 10-4-1954.
6. It will thus be seen that this is a record of certain information by Head Constable Dhanraj. It would appear that the search was made by Town Inspector Mahajan. It was therefore necessary for him to himself record the grounds for his belief before proceeding to the Mount Hotel for making a search. Since he did not do so, he had no authority whatever to act under Section 40. The provision in this regard contained in Section 40 is of a mandatory character and is evidently enacted for protecting per-sons from vexatious searches. Non-compliance with such a provision would render a search illegal.
Since the search made by Mahajan was illegal, it cannot be said to be one made by him in the exercise of his powers under the Prohibition Act. If he was assaulted or obstructed in carrying out the search, the person or persons assaulting him or obstructing him could not be held guilty under Section 332 of the Indian Penal Code.
It is not necessary for me to consider whether any of the acts of the applicants amounts to an offence under Section 323 or any other provision of the Indian Penal Code, because the applicants were not charged under Section '323 of the Indian Penal Code or any other provision thereof in the alternative, and also because it was not suggested by the learned Additional Government Advocate Shri Sen that the conviction of the applicants could be altered to one under any of the Sections of the Indian Penal Code.
7. For these reasons I set aside the conviction and sentence passed on each of the applicants and direct that the fines, if paid, shall be refunded to them.