C.D. Parekh, J.
1. State of U. P, has preferred this appeal against the judgment and order dated April 11, 1970, passed by the Additional Sessions Judge, II, Etawah, in Criminal Sessions Trial No. 164 of 1968. The respondents Sant prakash, Prem Saran Munna Lai, Shiv Ram, Shri Ram and Duryodhan were committed to the Court of Session to stand their trial for the offences under Sections 395 and 353 IPC. The trial Judge held that the prosecution failed to establish its case against the respondents and acquitted them of the charges levelled against them. The present appeal came up for hearing before a Division Bench of this Court, It was contended for the respondents before the Division Bench that the officers acting under the authority of law (Defence of India Rules and Gold Control Order) did not comply with the provisions of Sections 103 and 165 Criminal P.C. 1898; the search and seizure, therefore, conducted by these officers were vitiated and were illegal and the respondents had a right to resist the same, The order of acquittal, therefore, was rightly passed by the learned Sessions Judge. Various authorities were cited in support of and against the contentions of the respondents. In these circumstances a reference was made by the order dated 23rd August, 1974, passed by the Division Bench that the case be laid before a larger Bench for decision of the questions of fact and law involved in the case. By the order of the Hon'ble the Chief Justice the case has been listed before us. We are therefore, called upon not only to answer the points on reference but also to decide the entire case,
2. Briefly stated the prosecution case was that Shri Ram respondent, a certified Gold Smith under the Gold Control Order was carrying on the business of die cutting in his shop situate in mohalla Humesganj in the city of Etawah. As a certified gold smith Shri Ram was required to maintain register under the Gold Control Order. Shri G. U. Nemani P.W. 1 was the Preventive and Intelligence Officer of the Central Excise Department posted at Etawah during the relevant period and on 7th January, 1968, he was on the usual checking duty. At about 4.30 p.m. when he had concluded the checking of another gold smith named Murari Lai he received Information that Shri Ram was preparing gold ornaments at his shop. After the receipt of this information P.W. 1 G. U. Nemani along with P.W. 4 K. K. Misra (who was along with P, W. 1 in the checking) reached the place of Shri Ram respondent situate on the first floor of the house in mohalla Humeshganj. At the time and place Shri Ram was present and he was busy in cutting the ornaments. Shiva Ram, Raj Bahadur and a boy, not named, were also present there P.W. 1 took the register of the shop of Shri Ram and after checking the entries therein he found that the ornaments in possession of Shri Ram were not entered in the register. He took into his possession seven items of ornaments from Shri Ram. He also searched the Jhola of Shiva Ram and took two ornaments from the Jhola as well. Me took the register in his possession and dictated a memo, of the recoveries to P.W. 4 K. K. Misra. This memo was signed by Shri Ram and Raj Bahadur as well. He took a tin box and kept all the ornaments that were taken from Shri Ram and Shiva Ram. The tin box was wrapped in a cloth and was being sealed at that moment. Respondents Duryodhan, Sant Prakash, Munna Lai, Prem Saran and some other unknown persons arrived there. Sant Prakash exhorted and asked Shiva Ram and Shri Ram not to allow P.Ws. 1 and 4 to take away the gold and they would see to it later one On this exhortation Shri Ram, Shiva Ram, Sant Prakash Duryodhan and their companions snatched the register and the tin box containing the ornaments and fled away from that place. They were chased by these two witnesses. In this pursuit Sant Prakash and Duryodhan respondents could be apprehended with help of one Constable Kanhai Singh but the other respondents succeeded in taking away the register and the box containing the ornaments. P.W. 1 got the first information report scribed by P.W. 4 and lodged the same at P. S, Kotwali, A case under Sections 395 and 353 IPC was registred at P.S. Kotwali. No action under the Gold Control Order was taken against the respondents. After investigation charge-sheet was submitted against all the respondents for the offences as aforesaid and after inquiry the case was committed to the court of session where the respondents were tried for the charges. All the respondents have been acquitted by the Sessions Judge.
3. The respondents did not plead guilty to the charges. Sant prakash respondent pleaded that he was implicated in the case on account of enmity with P.W. .1. His case was that he was the Secretary of the Zila Swarnakar Sangh. On January 7, 1968 he and Duryodhan both were present in the office of the Sangh situate near the shop of Shri Ram. P.W. 1 Nemani came there and he wanted them to sign some papers and on their refusal, both of them were taken to Kotwali and lodged there. The plea of respondent Duryodhan was identical with that of Sant Prakash. He has tried to explain away the enmity. According to him he was arranging a demonstration against Nemani which he stated as observation of 'Black Any'. Prem Saran, Munna Lai pleaded that they were the active workers of the Sangh and were roped in the case on that account, Shiva Ram, besides denying the charge, pleaded that he was not present at the spot. Respondent Shri Ram admitted that he was a certified gold-smith under the Gold Control Order and was responsible to maintain a register and make entries in that register as provided by law. According to him all those ornaments which were said to have been recovered were entered in the register, but P.W. 1 did not check them from the register but prepared the list of ornaments or the memo from the register itself. He has suggested interpolation in Ex. Ka. 1 the recovery memo. According to him P.W. 1 wanted to confiscate the gold and on his protest there was verbal altercation and the P.W. 1 left the place murmuring and in rage and falsely implicated the respondents including him in this case.
4. The prosecution in all examined four witnesses. P.W. 1 G, U. Nemani has gievn out the prosecution story while P.W. 4 K. K. Misra has tried to corroborate him on broad facts. P.W. 2 Phool Singh, the then Head Moharrir at P.S. Kotwali, had taken into custody the respondents Sant Prakash and Duryodhan from Constable Kanhai Singh. He had prepared the check report from the written report. He had registered the case and had lodged Sant Prakash and Duryodhan ip the police lock-up. P.W. 3 Sher Singh was the Investigating Officer who after investigation submitted charge-sheet against the respondents.. The trial Court on the consideration of Statements of P.Ws. 1 and 4 came to the finding that the pame of Prem Saran and Munna Lai was not known to either of them. The trial Judge did not believe that the identity of Prem Saran and Munna Lai was known to these witnesses prior to their alleged participation in the offence. During the course of investigation no identification parde was held for which reason the trial court doubted their presence and acquitted them. learned Counsel for the State urged before us that the trial Court accepted the testimony of P.Ws. 1 and 4 in its entirety and held that the incident took place in the manner alleged by them but erred in its finding that Prem Saran and Munna Lai were not present at time and place of incident In our opinion the learned Judge has given good reasons for rejecting the testimony of P.Ws. 1 and 4 in this respect. In his statement K. K. Misra P.W. 4 did not state that the two persons were known to him from before, P.W. 1 stated that he had seen the faces of these two persons on some occasions in the Range Office at Etawah. How, therefore, the names of Prem Saran and Munna Lai could be known to these two witnesses could not be explained by them in the cross-examination. The trial Judge, therefore, in our opinion rightly doubted their presence and participation in the crime. learned Counsel for the State could not point out any evidence from the record so as to come to a contrary finding. The two other persons, viz., Raj Bahadur one of the signatories of Ex. Ka. 1 the recovery memo, and Kanhai Singh, the constable with whose help Duryodhan and Sant Prakash were apprehended, were pot produced. They could have thrown some light whether these two persons were seen by them at the spot or not. The non-production of these two persons, in our opinion, is an additional reason for holding that the identity of these two persons was not established. We therefore, uphold the acquittal o Prem Saran and Munna Lai.
5. Respondents Sant Prakash and Duryodhan could be apprehended with the help of Constable Kanhai Singh. They were taken to the Police Station Kotwali and were put in the lock up there. The fact has not only been mentioned in the written report Ex. Kas 2 given at the thana but is also mentioned in Ex. Ka. 5, the general diary. The plea of these respondents that they were not present at the time and place of incident and were called from the office of the Sangh does not appear to be correct. If PWS 1 and 4 wanted to have the signatures of some witnesses on some papers they would not have approached their adversaries (as asserted by the respondents themselves) but they could have approached some other persons to get the documents authenticated. There was no other document except Ex. Ka. 1, the _ recovery memo, which had already been signed by Shri Ram and Raj Bahadur. If the respondents were taken from their office they could have very well protested at the thana and could have brought the fact to the notice of the officer in-charge there that they were innocent persons and had been brought to the thana on the pretext. Subsequently as well they did. nothing to bring the facts to the notice of higher authorities, No evidence was led to support the plea that they were brought to thana on the pretext and were lodged in the lockup. In cross-examination as well nothing could be brought out on this aspect of the case. In our opinion, therefore, the plea taken by the respondents Sant Prakash and Duryadhan has no substance.
6. Case of Shiva Ram is of total denial. He has even denied his presence at the shop of Shri Ram. He has admitted that he was certified goldsmith under the Gold Control Order but denied the recovery of gold Kan-gan and Goli said to have been recovered from his Jhola. From the evidence of P, W. 1 it was established that he was known to him from before. In Ex. Ka. 1 his name appears there. Ex. Ka, 1 if it was prepared at the shop of Shri Ram at the relevant time, records the fact that two items of ornaments were recovered from his possession. This memo has been signed by Shri Ram the other respondent. There appears to be no earthly reasons as to why the name of Shiva Ram respondent was mentioned and why gold weighing about 30 gms. was shown to have been recovered from his possession. No reason has been assigned as to why these false statements were introduced in the memo. It is another matter that the signature of Shiva Ram may not have been obtained by P.W. 1 or P.W. 4 on the recovery memo but that omission does not give any advantage to Shiva Ram nor any inference in his favour and against the prosecution can be drawn that he was not present at the relevant time at the shop of Shri Ram. The statements of P.Ws. 1 and 4 and the statements contained in Exs. Ka. 1 and 2 fully establish that Shiva Ram was present at the time of incident at the shop of Shri Ram.
7. Shri Ram admits his presence at the time when P.Ws. 1 and 4 went there for checking his shop. He admits his presence at the time of seizure of nine items of gold ornaments. According to him these ornaments were entered in the register maintained at the shop, He did not dispute the recovery of Kangan and Goli said to have been recovered from Shiva Ram or that in the recovery memo this statement has been wrongly mentioned. In the circumstances it has to be held that the recovery was made of gold Kangan and gold Goli from the Jhola in possession of Shiva Ram and these two items, therefore, could not have been entered in the register maintained by Shri Ram because these two ornaments did not belong to him. The case of respondent Shiva Ram was that P.W. 1 intended to confiscate the gold ornaments to which he had protested and on which there was altercation and P.W. 1 left the place murmuring, with the register. The plea of Shiva Ram appears to have been an afterthought, It has also been urged on behalf of Shri Ram that there were certain interpolations in Ex. Ka. 1 and the words occurring in Ex. Ka. 1 'Jo Register Me Darj Nahi Hai' were subsequently added. We have examined the alleged interpolated words. In our opinion from the evidence on record and intrinsically as well it appears that these words were not interpolated subsequently and were written at the time of preparation of Ex. Ka, 1, This document was mentioned in the general diary at the thana as well and the words said to have been subsequently added or interpolated find place in the general diary as well. In our opinion, therefore, there is no reason to suspect the genuineness of Ex. Ka. I.
8. Another plea of the respondents was that the register was taken away by P. W 1 and P.W. 4 by force and was in their possession and control and it was being suppres-ed for oblique motive. In our opinion this plea also has no substance. In Ex. Ka 1 the register has been mentioned. It is true that no separate recovery memo was prepared by P.Ws. 1 and 4 but this fact alone is not suggestive of the motive assigned to P.Ws. 1 ana 4. The reasons are quite obvious. If the witnesses wanted to suppress this register they would not have mentioned it in Ex. Ka. 1, it has specifically been mentioned that the ornaments found in possession of Shri Ram have not been entered in the register.
9. Another comment was made that for oblique motive, P.Ws. 1 and 4 have falsely shown in Ex. Ka. 1 recovery of ornaments from Shiva Ram. No such oblique motive has even been suggested to them, The specific mention of item No. 9 in Ex. Ka. 1 that they were found in the Jhola of Shiva Ram does not only establish the fact that Shiva Ram was in possession of those ornaments but also goes to establish the fact that Shiva Ram was also present there. The (further fact that the recovery was shown is sufficient in our opinion to rule out any motive and the ornaments if they belonged to Shiva Ram could not be entered in the register maintained by Shri Ram.
10. A general comment was made that there were no independent witnesses in support of the prosecution case and that the antecedents of Nemani are such that on his testimony no reliance should be placed. The fact has been brought out in cross-examination which Nemani admitted that he remained under suspension for three years in the past due to some inquiry of corruption against him. But as it appears the clouds on his integrity could be removed and he was given over the charge of office once again. That fact by itself is not sufficient to hold that the statement of Nemani for reasons of his antecedents is not reliable. P.W. 1 and P.W. 4 approached the shop of Shri Ram in discharge of their duty and no enmity has been brought out on record against them. AH the public servants, if not always, at the time when they carry on their duty entrusted to them of preventing any crime, they have to perform unpleasant tasks against the person who is suspected of committing any offence, but for that reason in our opinion the evidentiary value of such public servants is not affected unless there be something specific against them. In this, connection it was also pointed out that there are vague allegations in the first information report about the facts of the case and no specific allegation against any of the accused persons pamed therein has been stated except against Sant Prakash and that too for instigating Shiva Ram and Shri Ram pot to allow the gold being taken away by the Inspector. From the statement before the trial Court it was tried to be pointed out that the case disclosed in the first information report has been developed and specific allegations have been made in the statement before the trial court and those developments have been branded as contradictions by the learned Counsel. We have gone through the statements before the trial Court as well as the statement contained in the first information report of Nemani. in our opinion although specific case was not taken while lodging the first information report but that does not materially affect the merit of the case. From the two statements made before the trial court, i. e., of P.W. 1 and P.W. 4, it was tried to be pointed out that no definite part of taking away the register or the ornaments can be assigned to any of the respondents or the accused named in the first information report. We have considered the comments made and the veracity of the statements of P, Ws. 1 and 4. In our opinion the cursory and stock comments as made are not sufficient to reject their testimony. We hay scrutinised their statements and in our opinion the version given by both of these witnesses about the assembly of the respondents at the shop of Shri Ram and picking up the register ana the ornaments by these persons as a concerted action has been established in this case. As for the alleged contradiction suffice it to say that those contradictions have not been put to the witnesses nor any opportunity has been given to them to explain away the alleged contradictions. In our opinion, therefore, the respondents cannot take any advantage of the alleged contradictions although there are none, It is another matter that while conducting the search and the seizure of the alleged ornaments and the register, P.Ws. 1 and 4 may have committed some irregularity or illegality in procuring the ornaments ip question or conducting search and seizure of the ornaments and the register, but that is not sufficient to reject their testimony. Overall their statements inspire confidence and are wrothy of belief.
11. From the direct and substantial evidence brought on the record it is not established that Shri Ram, Shiva Ram, Sant Prakash and Duryodhan were out to commit theft or in picking up the register or the ornaments box these persons for that an (sic) voluntarily caused or attempted to cause any of the overt acts contemplated by Section 390 I. P.C. The trial Court held that simple criminal force was used to take away the articles from the possession of P. Ws, 1 and 4. In our opinion the statements of these two witnesses simply prove the fact that the register and the box containing ornaments were picked up by these respondents and thus prevented P.Ws. 1 and 4 from taking those articles and the register with them. No act of theft or act connected to successfully accomplish theft by the respondents has been established. There is no evidence on record that the four respondents or any of them assaulted either P.W. 1 Nemani or P.W. 4 K. K. Misra. The charge under Section 395 I. P.C. thus is not established, We agree with the finding of the trial court that the prosecution failed to bring home the charge of dacoity against any of the respondents.
12. The main controversy centers round the charge under Section 353 I. P. C, which reads thus:-
Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The learned Counsel for the State submitted that P.Ws. 1 and 4 were public servants during the relevant period. P.W. 1 Nemani was Preventive and Intelligence Officer of the Central Excise Department and was posted as an Inspector while P, W. 4 K. K. Misra was the Sub-Inspector working in that department at Etawah. The Gold Control Administrator by order dated January 7, 1965, passed under the provisions of Defence of India Rules, 1962, had authorised all the Inspectors of the Central Excise Department to exercise the powers under Rule 126-G (3) for inspection of accounts, registers and other documents relating to purchase, sale or delivery of any quantity of gold in the possession or under the control of dealer or refiner, Under Rule 126-L (1) all the Sub-Inspectors of the Central Excise Department and Preventive Officers of the Customs Department for the time being employed for the prevention of smuggling and the officers of the Directorate of the Revenue Intelligence other than the Administrative Officers. Hindi Officers and the ministerial officers, could enter into and search any establishment of any licenced dealer or refinery and seize gold or packages and receptacles covering gold when the officers suspect that any provision of part 12-A of the Defence of India Rules, 1962 has been or is being or is about to be contravened. The relevant notification au- thorising the said officers to exercise the powers was placed before us, We are satisfied from the prosecution evidence that Shri Ram was a dealer within the meaning and definition of that word under the Gold Contral Order. The fact has also been admitted by Shri Ram that he was a certified goldsmith holding certificate under the Gold Control Order. It was also admitted and proved in the case that at Humesganj, Etawah, the place where these officers concluded the search and the seizure was the business premises of Shri Ram. It was also admitted by Shri Ram that he was liable to maintain the register under the Gold Control Order. In these circumstances we are satisfied that if P.W. 1 after having received information supspecting indulgence of Shri Bam respondent in violation of the Gold Control Order could under the powers conferred under the said notification by the Administrator under the Gold Control Odrer, enter into the premises of Shri Ram and make search and seizure.
13. It is admitted in the case by the prosecution witnesses that before making the search P.Ws. 1 and 4 did not call upon two or more respectable inhabitants of the locality to attend and witness the search. According to the prosecution case the search was made in the presence of Raj Bahadut who has signed the search memo and one boy who has not been named nor he has put his signature on the search memo. The address of Raj Bahadur has not been given in the search memo Ex. Ka, 1. It was also admitted by P.Ws. 1 and 4 that they did not make any attempt to have respectable witnesses of the locality for the search nor did they make any effort to procure respectable witnesses of the locality. It is also admitted in the case that P.W. 1 although had the powers of entry, search and seizure but he did not record in writing the grounds of his belief that Shri Ram was making the ornaments in contravention of the Gold Control Order and was thus committing the offence for which he had the authority to make search and seizure. In substance it is admitted that neither the provisions of Section 103 nor the provisions of Section 165 Criminal P.C. 1898 were complied with. The learned State Counsel submitted that it was a routine search which P.W. 1 could do as he was on patrol duty at the time and date of the incident and thus was not required to comply with the provisions of Criminal P. G. In the second place it was urged that the officers who were authorised by the Gold Control Administrator could go at any time for the inspection of the relevant accounts and could search and seize any gold in respect of which they suspected that the provisions of Gold Control Order has not been complied with and thus the powers of entry, search and seizure were not controlled by the Criminal P.C. and the Officers having such authority were only required to comply with the provisions as contained in the Gold Control Order. The submission is that the provisions of Criminal P, C. about search and seizure do not call for strict compliance under the Gold Control Order or the Defence of India Rules. The provisions according to the learned Counsel for the State as contained in the Criminal P. C, are not mandatory but they are directory and the non-compliance of it is only an irregularity which does not vitiate the search or seizure or give any right to the person affected nor it vitiates or affects the trial in any manner.
14. learned Counsel for the respondents submitted that it was mandatory for an officer enjoying the powers under the Gold Control Order purported to have been passed under the Defence of India Rules to have complied with the provisions of Sections 103 and 165 Criminal P.C. and non-compliance vitiates the search and seizure and if the respondents had picked up or taken away the register or the ornaments box found and obtained by P, W. 1, any such act on the part of the respondents will not be covered up by the acts and omissions contemplated by Section 353, I. P.C. and the offence cannot be said to have been made out
15. To resolve the controversy between the parties it may be relevant to reproduce Rule 126-G and Rule 126-L of the Gold Control Rules which run thus:
126-G. Accounts.- (1) Every dealer who is required to apply for a licence, or is licensed, and every refiner who- has made an application for a licence or is licensed under this part shall keep an account in such form and manner as may be prescribed of the gold bought or sold or otherwise received or disposed of by him, at each transaction.
(2) Every dealer and every refiner licensed under this rule shall, if so required by the Administrator
(a) produce before the Administrator any account, register or other document, and
(b) Furnish to the Administrator any information relating to the quantity of gold in his possession or under his control or to the purchase, sale or delivery of gold by him.
(3) All accounts, registers and other documents relating to any quantity of gold or to the purchase, sale or delivery thereofi and any gold in the possession under the control of the dealer or the refiner, wherever kept shall be open to inspection by any person authorised by the Administrator in this behalf.
126-L. Power of entry, search and seizure. (1) Any person authorised by the Administrator by writing in this behalf may
(a) enter and search any refinery of which the refiner or the establishment of a Dealer who is licensed under this part;
(b) seize any gold in respect of which he suspects that any provision of this part has been, or is being, or is about to be, contravened, along with the package, covering or receptacle, if any, in which such gold is found and therefater take all measures necessary for their safe custody:
(c) seize any books of account, return or any other document relating to any gold in respect of which he suspects, that any provision of this part has been or is being or is about to be, contravened and thereafter take all measures necessary for their safe custody.
(2) Any person authorised by the Central Government by writing in this behalf may
(a) enter and search any premises, not being a refinery or establishment referred to in Sub-rule (11 vaults, lockers or any other place whether above or below ground;
(b) seize any gold in respect of which he suspects that any provision of this part has been or is being or is about to be contravened, along with the package, covering or receptacle if any, in which such gold is found and thereafter take all measures neces^ sary for their safe custody,
(3) Any officer authorised by the Administrator by writing in this behalf may search any person if that officer has reason to believe that such person has secreted about his person
(a) any gold in respect of which such officer suspects that any provision of this part has been, or is being, or is about to be, contravened;
(b) any document relating to such gold.
(4) When any such officer as aforesaid is about to search the person referred to in Sub-rule (3), shall, if such person so requires, take such person to the nearest gazetted officer authorised by the Administrator or to the nearest magistrate.
(5) Any officer authorised by the Administrator by writing in this behalf may, if he suspects that any person has contravened, or is contravening or is about to contravene any provision of this part, detain such person and take him to a gazetted officer or to a magistrate for a search of his person.
(6) A gazetted officer or magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(7) No female shall be searched by anyone excepting a female,
(8) Any officer authorised by the Administrator by writing in this behalf may, if he has reason to believe that any person his contravened, or is contravening or is about to contravene any provision this part, arrest such person and shall as soon as possible inform him of the grounds for such arrest and shall take such arrested person to the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate,
(9) An officer who has arrested any person under this rule shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subjected to under the Code of Criminal Procedure, 1898 (5 of 1898).
(10) Any Officer authorised by the Administrator by writing in this behalf, may, if he has reason to believe that any aircraft, vehicle or animal or any vessel is being or is about to be, used for carrying any gold in respect of which he suspects that any provision of this part has been or is being or is about to be contravened, at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and
(a) rummage and search any part of the aircraft, vehicle or vessel;
(b) examine and search any goods in the aircraft, vehicle or vessel or on the animal;
(c) break open the lock of any door or package for exercising the powers conferred by Clauses (a) and (b), if keys are withheld, and
(d) if it becomes necessary to stop any such aircraft, vehicle or animal or vessel he may use all lawful means for stopping it, and where such means fail, the aircraft vehicle, vessel or animal may be fired upon.
(11) (a) The following conveyance shall be liable to confiscation
(i) any vessel which is or has been within the Indian waters, any aircraft which is or has been in India or any vehicle which is or has been in any area in India, while constructed, adapted, altered or fitted in any manner for the purpose of concealing gold:
(ii) any conveyance from which the whole or any part of gold is thrown overboard, stayed or destroyed so as to prevant seizure by any officer authorised by the administrator;
(iii) any conveyance which having been required to stop or land under Sub-rule (1) fails to do so, except for good and sufficient cause;
(iv) any conveyance from which any gold cleared for exportation is unloaded without the permission of the officer authorised by the administrator in this behalf;
(v) any conveyance carrying imported gold which has entered India and is afterwards found with the whole or substantial portion of such gold missing, unless the master of the vessel or aricraft is able to account for the loss of, or deficiency in the gold.
(b) any conveyance or animal used as a means of transport or in the carriage of any gold in respect of which any provision of this part has been, or is being or is about to be, contravened, shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself. his agent, if any and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules made in this behalf by the Administrator:
Provided that where any such conveyance or animal is used for the carriage of goods or passengers for hire, the owner of the conveyance or animal shall be given an option to pay in lieu of confiscation of the conveyance or animal, a fine not exceeding the value of the gold which was sought to be so conveyed or carried.(12) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to search and seizure shall, so far as they are applicable, apply in relation to search and seizure made under this rule.
(13) Any gazetted officer authorised by the Administrator in this behalf may hold an inquiry for the purpose of ascertaining whether any contravention of any of the provisions of this part has been, is being, or is about to be, committed and shall for the purposes of such inquiry have power to summon any person whose attendance he considers necessary either to give evidence or to produce any document or other thing,
(14) The Administrator may call for information from any person for the purpose of ascertaining whether or not there has been any contravention of any of the provisions of this part.
(15) The Administrator shall have power
(a) to take samples of gold from any dealer, refiner or other person in such manner as may be prescribed;
(b) to send such samples for assay or analysis to such authority as may be prescribed and to require such authority to send a report to the Administrator as to the result of the assay or analysis.
(16) Any person who in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under Rule 126M or abets the doing or omission of such an act shall be liable, in addition to any liability for any punishment under this part, to a penalty not exceeding five times, the value of the gold or one thousand rupees, whichever is more.
And such penalty may be imposed,
(a) without limits, by an officer not below the rank of Collector of Customs or Central Excise;
(aa) where the penalty proposed to be imposed does not exceed ten thousand rupees by an officer not below the rank of Deputy Collector of Customs or Central Excise;
(b) where the penalty proposed to be imposed does not exceed two thousand rupees, by an officer not below the rank of Assistant Collector of Customs or Central Excise.
Explanation:- Any reference to gold in this Rule and in Rule 126M shall, unless the context otherwise requires, include any article of gold referred to in Sub-rule (2) of Rule 126B,
16. It is urged on the words of Rules 126L (1) (b) and 126L (3) that two provisions speak about different situations in which any officer authorised by the Administrator is to exercise his powers. Under Rule 126L (1) (b) the person authorised by the Administrator may seize any gold in respect of which he suspects that any part of XHA is contravened but Rule 126L (3) relates is a situation where any officer authorised by the Administrator...may search any person if that officer has reason to believe that such person has secreted about his person any gold ... or any document relating to such gold. In this connection reference was also made to Section 47 Criminal P, C. to show that the expression 'reason to believe' has been used in relation to search of a place entered by a person sought to be arrested. Reference was also made to Section 153 Criminal P.C. to show that when any officer-in-charge of a police station ...has reason to believe that at any place where weights, measures or instruments, which are false are kept he may enter the place without a warrant. It was therefore, urged that P, W. 1 Nemani when be received information at the shop of Murari Lai that Shri Ram was indulging in activities connected with the contravention of Gold Control Order he could have only reason to believe and was, therefore, not required to comply with the provisions of Sections 103 and 165 Criminal P.C. The underlined words have been used in a different situation. The difference is real and material. The situation contemplated by the use of the two expressions 'suspects' and 'reason to believe' are explicit and the circumstances contemplated by the provisions themselves in both the situations although personal to the officer and concerning applicability of his mind but while exercising his mind when he suspects a thing is different than when he has reason to believe. When an officer suspects that any provision of Gold Control Order is being or is about to be contravened he may enter search and seize the gold from any licenced refinery or establishment of a licenced dealer but when he has reason to believe that there is secreted gold on the person of any individual in contravention of Gold Control Order he may get the suspected gold from the search of that person. Such person may be detained and action as provided in Sub-rule (4) of Rule 126L of the Gold Control Rules is required to be taken. The situations contemplated in the two different sections of the Code of Criminal Procedure and the two different provisions of the Gold Control Order are quite clear. In this case Nemani P, W. 1 had all the powers of search and seizure and to enter any place contemplated in Sub-rule (1) of Rule ]26L for that purpose. It was admitted by Nemani that after having received the information of contravention of Gold Control Order by Shri Ram and at his place he proceeded to Humesganj and entered the shop of Shri Ram. He claims that he found gold ornaments in possession of Shri Ram and Sheo Ram which were not entered in the register kept by Shri Ram at his shop and maintained by him under the Gold Control Order, He claimed that for these reasons he seized the ornaments and the account register. We are, therefore, required to see as to what is the impact of Sub-rule (12) of Rule 126L of the Gold Control Order and whether Sections 103 and 165 Criminal P.C. were required to be complied with before entering any premises to search the same or to search the person of any offender and seize gold or account books etc. The power of inspection simpliciter contemplated under sub-r. (3) of R, 126G of the Gold Control Rules although was conferred on Nemani and he had that power on the date of incident but Nemani had not proceeded as admitted by him for the purpose of inspection as contemplated by the said sub-rule. The admitted position, therefore, was, and which emerges out of the statement of Nemani is, that after having received information regarding the contravention of Gold Control Order Deing committed by Shri Ram he proceeded to the shop for that purpose. The evidence, therefore, in the case rules out all possibility of Nemani taking steps for inspection as contemplated by Sub-rule (3) of Rule 126G and according to the evidence the case is covered up by Rule 126L (1) of the Gold Control Rules, In the circumstances whether he was required to comply with the provisions of the Code of Criminal Procedure relating to search and seizure in so far as they were applicable in relation to search and seizure under Rule 126L are required to be seen. An attempt was made to distinguish that under the Code of Criminal Procedure the property recovered after search and seizure is to be dealt with in a different manner than the property which is recovered after search and seizure under the Gold Control Rules. It may be so. Under the Criminal Procedure Code a police officer has been given power under different situations to make search and arrest without warrant. Rule 126-L is not complete on all such matters. The powers are to be exercised under the authority of the Administrator and which are delegated and controlled under the provisions of Gold Control Rules. It is true that Section 1 (2) of the Code makes an exception in favour of certain provisions which are otherwise contained in a special law and those provisions, however, prevail over the Code. Nothing has been pointed out that in effecting search and seizure an officer authorised under the Gold Control Oixler is to ignore the formalities contemplated by Section 103 or 165 Criminal P.C. As pointed out above the Gold Control Rules itself, in Sub-rule (12) of Rule 126L, enjoins upon the officer conducting the search and seizure to comply with the provisions of the Code so far as they are applicable. No con- trary provision has also been pointed out under the Gold Control Rules. In our opinion therefore, while conducting search and seizure for the purposes of Gold Contro-Rules, the Officers authorised by the Administrator are to comply with the provisions contained in Sections 103 and 165, Criminal P.C. The provisions contained in the Code of Criminal Procedure relating to search and seizure are safeguards to prevent or check on the clandestine use of the powers conferred on the officers. It may be that under certain circumstances the condition laid down as safeguards may not appear desirable but that will not take away the effect of those safeguards. In our opinion, they are meant to be complied with and not to be put in contempt. The entire scheme of the Gold Control Rules as it appears to ourselves is to prevent violation of the Rules considering the economic situation of the country, The officers are, therefore, authorised to take steps when they suspect that the contravention of the Rules is being done or is about to be done and he may search the person or the place when he has reason to believe that in contravention of the Rules Gold can be found out. The Officers are authorised to take steps under the delegated powers.
17. The only reason assigned for non-compliance of Sections 103 and 165 Criminal P.C. by the learned Counsel for the State was that P.W. 1 Nemani had proceeded to the shop of Shri Ram in usual checking and had not proceeded to investigate any offence. At this stage it may be relevant to point out that the power of investigation covers up various steps towards ascertainment of offence. The powers of search and seizure are such steps. It may be that under the Gold Control Rules Nemani may not be possessed of powers beyond making a report after search and seizure of the alleged contravention but that does not mean that the power of search and seizure is not a part of investigation. In our opinion it is an integral part of the whole subject where the offence after ascertainment is brought about and the case against the offender is proceeded against. On the question of fact we are satisfied that Nemani P.W. 1 had taken steps towards the ascertainment of the offence, 'Investigation' has been defined in Section 4 (1) Criminal P. C, and it includes all proceedings under the Cod for the collection of evidence conducted by a police officer or by any person who is authorised by a Magistrate in this behalf. The main purpose of investigation, therefore, is collection of evidence conducted by a police Officer or the person enjoying the powers of a police officer or by any person authorised by a magistrate in this behalf or the person in authority. It does not make any difference if the designation or the nomenclature of the officer or the designation or the nomenclature of the authority authorising such officer be different. What is material is that person must be taking proceedings for the collection of evidence. We are therefore, satisfied that Nawani was taking steps towards the investigation of an offence which came to his knowledge on information received through informant at the shop of Murari Lai and he had proceeded to the shop of Shri Ram to investigate and collect evidence at that place and in consequence thereof he entered the shop and made the search and seizure of the ornaments and the register.
18. It was also contended on behalf of the State that Sections 103 and 165 Criminal Pt C. did not verbatim apply in this case. It may be true but the officer authorised to make a search was required to call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search. Nawani did comply with Sub-section (2) of Section 103 Criminal P.C. in so far as it related to the preparation of the list of things seized during the course of search but he did not take any witness of the locality to witness the search. Under the provisions of Section 165 Criminal P. C, it was urged on behalf of the State that the section is primarily meant for an officer incharge of a police station or a police officer making an investigation, Those officers alone are required to record in writing the grounds of their belief and others are not required to comply with the same. We are unable to agree with the learned Counsel for the State.
19. The powers of search given under Chapter XIV Criminal P.C. is incidental to the conduct of investigation which a police officer is authorised by law to make. The legislature when it has imposed conditions for carrying out search and seizure under the Code of Criminal Procedure has invaded certain safeguards. In the case of State of Rajasthan v. Rehman : 1960CriLJ286 their Lordships of the Supreme Court considered the object of search and seizure. Before the Supreme Court the case arose under the Central Excises and Salt Act. 1944. Section 18 of that Act and Rule 201 which authorised the officer under that Act to make search were considered. The Supreme Court held that the object of search under the Central Excises and Salt Act, 1944, was only to ascertain whether there was a contravention of the provisions of the Act or Rules. Rule 201 of the Rules under Central Excises and Salt Act authorised the officer to make the search only for the investigation of an offence. Section 18 of that Act provides that a search under the Act and Rules will be carried out tinder the provisions of the Code of Criminal Procedure. In view of the Supreme Court it is clearly indicated that the appropriate provisions of the Code governed searches authorised under the Central Excises and Salt Rules. For the reasons the Supreme Court held that the provisions of Section 165 Cri- minal P. C, must be followed in the matters of searches under Rule 201 of the Rules, it has also been observed that there was no reason why a condition should be imposed in the matter of a search by the police Officer under Section 165 Criminal P.C. but no such safeguard need be provided in the case of a search by the Excise Officer under the Rules. It has been held that the recording of reasons under Section 165 Criminal P.C. do. s not confer on the Officer jurisdiction to make a search though it is a necessary condition for making a search. The Supreme Court has also held that Section 165 Criminal !'. C. lays down various steps to be followed during search and recording of reasons is an important reason in the matter of search ;r d to ingore it is to ignore the material part of the provisions governing searches. If the it can be ignored it cannot be said that (lie search was carried out in accordance with the provisions of the Code of Criminal Procedure; it will be a search made in contravention of the provisions of the Code. On the facts and circumstances of that case it was held that the search made by the Deputy Superintendent in contravention of the provisions of Section 165 Criminal P.C. was illegal. Before the Supreme Court an argument was also raised that non-recording of reasons by the Deputy Superintendent was only an irregularity and the person proceeded against had no right to prevent the officer making the search. This argument was raised for the first time before the Supreme Court and, therefore, it was not allowed to be raised. In the instant case learned Counsel for the state urged that it was merely an irregularity and did not confer any right on the respondents nor in the instant case the respondent prevented the officers P.Ws. 1 and 4 from making the search, According to the submission the respondents allowed the search to be made, allowed them to prepare the memo and to the register. Therefore, according to the learned Counsel for the State the law laid down by the Supreme Court does not help the respondents. The point of applicability of Section 165 Criminal P. C, also came up for consideration in a case reported in the case of Board of Revenue, Madras v. R. S. Thaver : 1SCR148 . Ill that case the officers of the Sales Tax Department raided the premises of Zennith Lamps and Electricals Ltd. It was said that the premises were searched and a suit-case was seized and forcibly removed by the officers who made the raid in spite or the fact that they were informed that the box did not contain any papers or documents relating to the Company and its contents consisted merely of personal effects of one of its managing directors. Section 41 of the Madras General Sales Tax Act was considered by the Supreme Court in that case. The main dispute centred round the interpretation of Sub-clause (2) of Section 41. It was contended before the Supreme Court on behalf of the respondents that the provisions did not au- thorise the search of the premises but merely provided for inspection thereof at all reasonable times by the empowered officers. The Supreme Court held that though Sub-section (2) itself provided no safeguard and might have been open to objection on that ground but there was a provision in the proviso to Sub-section (2) which laid down that all searches under that sub-section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure. Therefore, the provisions of Code of Criminal Procedure, so far as may be, applied to all searches made under Sub-section (2). The Supreme Court held that the proviso clearly lays down that all searches made under the sub-section so far as may be shall be made in accordance with the provisions of Criminal Procedure Code. Thus all the provisions contained in Criminal Procedure Code relating to searches would be applicable to searches made under Sub-section (2) so far as may be. The Supreme Court also dealt with this aspect of the matter that Section 165 Criminal P. C, specifically refers to an officer-in-charge of a police station or a police officer making an investigation but when the proviso provides the application of the provisions of the Code of Criminal Procedure to all searches made under the section as far as may be possible the Supreme Court observed that there was no reason why Section 165 Criminal P.C. would not apply mutatis mutandis to the searches made under that section. The Supreme Court observed that the safeguards provided under Section 165 Criminal P.C. also applied. They enumerated the safeguards as under:
(1) The empowered officer must have reasonable grounds that anything necessary for the purpose of recovery of tax may be found in any place within his jurisdiction;
(2) He must be of opinion that such a 1 thing cannot be otherwise got without undue delay;
(3) He must record in writing the grounds of his belief;
(4) He must specify in such writing so far as possible the thing for which the search is to made.
Their Lordships held that those safeguards applied to searches under the provisions of Section 41 (2) of the Madras General Sales Tax Act, It was, therefore, held in that case that the safeguards provided under Section 165 Criminal P.C. were not followed and anything recovered on a defective search of the kind must be returned. Similar provisions, as we have already examined, exist under the Gold Control Rules. We have already quoted the relevant rules and in our opinion, therefore, the safeguards as held by the Supreme Court are, and were necessary to be followed in case of a search and seizure, of the property and places by the officers enjoying the powers of search and sei-7''-e under the Gold Control Rules. The safeguards as stated above are, therefore, necessary to be observed while embarking upon search and the omission to resort to the provisions of the Code of Criminal Procedure and conducting the search in contravention of Section 165 Criminal P.C. may amount to an illegal search and the obstruction if any made during the course oi the search may be of some benefit to the person whose premises were being searched under the colour of an authority of law without compliance of the necessary formalities as contemplated by Sections 103 and 165 Criminal P.C. The point also arose before this Court in 1969 All WR (HC) 8 Prabhu v. State where a single Judge of this Court held that where neither a search warrant had been obtained as provided under Section 52 of the U.P. Excise Act nor the grounds to believe that attempt to obtain the search warrant would have afforded the offender an opportunity to escape or conceal the evidence of the offence, were recorded in a memorandum as required under Rule 281 of the Rules under the U.P. Excise Act the search was held to be absolutely illegal and the entire proceedings based on illegal search were held to be an initial void. In another case reported in State of U.P. v. Ram Sanehi (1969 Cri LJ 952) (All) a Division Bench of this Court considered the import of Section 165 Criminal P.C. and held that the safeguards incorporated by the legislature in Section 165 were mandatory and are not directory and that they were required to be carried out immediately and fully as nearly as possible in the circumstances of each case, In that case for the purposes of investigation of an offence the police party went to the house of one H and the Sub-Inspector without taking the steps under Section 165 Criminal P.C. told him that he will make search of the upper portion of his house. H remonstrated but the Sub-Inspector did not stop and insisted on searching that portion of the house and started climbing the ladder leading to that portion. H, however, pulled him down. On this the Sub-Inspector whipped out his revolver but before he could use it H and his companions assaulted and beat the police party and snatched the revolver from the Sub-Inspector. In those circumstances it was held that the search proceedings started by the Sub-Inspector were illegal and non-compliance of the statutory provisions of Section 165 Criminal P.C. did not amount to an ordinary irregularity. In the circumstances of that case it was also held that H must have entertained a reasonable apprehension of death or of grievous hurt being caused to him and in mat situation the assault on the police party was protected by the right of private defence of the person. Section 165 Criminal P.C. was also considered in connection with the powers conferred by Section 132 of the Income Tax Act, 1961, and Rule 112 framed under Section 295(1). The Supreme Court considered the aforesaid provision of law in the case of Income Tax Officer v. Seth Brothers : 74ITR836(SC) and held that by express terms of the Income Tax Act and the Rules the Income Tax Officer may obtain the assistance of a police officer. By Sub-section (13) of Section 132 the provisions of the Code of Criminal Procedure relating to searches applied, so far as may be, to searches under Section 132, thereby it is only intended that the officer concerned shall issue the necessary warrant, keep present the respectable persons of the locality to witness the search and then carry out the search in the manner provided by the Code of Criminal Procedure, While considering Section 132(2) of the Income-tax Act the Supreme Court held that it did not imply that the limitations prescribed by Section 165 Criminal P.C. are also incorporated therein. The Supreme Court was considering the special law relating to search and seizure as contained in the Income Tax Act and held that the provisions of Section 165 Criminal P.C. did not control Section 132 of the Income Tax Act. It may, therefore, be correct that the compliance of Section 165 Criminal P.C. is not of universal applicability and to all searches which are to be conducted under the special laws but in cases where the provisions of Criminal Procedure Code have been made to apply the compliance must be made and it is not left to the discretion of the officer conducting the search to ignore the provision and conduct the search. Section 165 Cr.P.C. was also considered by the Supreme Court in the case of R, S. Seth Gopi Krishna Agrawal v. R. N. Sen : 1967CriLJ1194 . In that case an information was alleged to have been received to the effect that the appellant was in possession of a large quantity of undeclared gold. The Assistant Collector of Customs and Central Excise Raipur issued an authorisation under Rule 126-L (2) of the Defence of India (Amendment) Rules, 1963, (Gold Control Rules) for searching the premises of the appellant. Pursuant thereto the appellant's premises were searched and as a result of search gold, foreign currencies and other articles were seized, It was contended that the search made was void inasmuch as in making the search the relevant provisions of the Code of Criminal Procedure had not been complied with. The argument was based upon Section 105(2) of the Act which provided that the provisions of Criminal Procedure Code, 1898, relating to searches shall so far as may be apply to searches under that section subject to the modification that Sub-section (5) of Section 165 of the Code shall have the effect as if for the word 'magistrate' wherever it occurs, words 'collector of Customs' were substituted. The argument was that the expression 'so far as it may be' in Section 105(2) of the Act attracted Section 165 Criminal P.C. and under that section as the police officer has to record in writing the grounds of his belief the Assistant Collector of Customs also while authorising the search should re- cord his reasons for doing so. But the Supreme Court expressed its opinion that Section 105 of the Act and Section 165 (1) Criminal P. C, w-ere intended to meet totally different situations. Under Section 105 of the Act the Assistant Collector of Customs either makes the search personally or authorises any other officer to do so if he has reasons to believe that the provisions of the Act are being contravened. Under Section 165 Criminal P.C. the recording of reasons for believing the facts is only to enable him to make search urgently in a case where search warrant cannot immediately be obtained, The Supreme Court held that if was not possible to invoke that condition and apply to a situation arising under Section 105 of the Act, The Supreme Court, however, did not express any opinion as to which of the other clauses or part of those clauses could be applied to the search under Section 165 Criminal P.C. In the present case as we are satisfied that Nemani proceeded on receiving definite information by an informer and he could have recorded the fact in writing as a safeguard as provided under Section 165 Criminal P.C. He could have also obtained public witnesses from the locality to witness the search. The non-compliance, in our opinion, was therefore, sufficient to make the search illegal, but Nemani was not resisted in making the search or seizure. What will, therefore, be the effect such a search which has been conducted in violation of Sections 103 and 165 Criminal P.C. The matter came up for consideration in a case reported in Shyam Lai v. State of M. P. : 1972CriLJ638 where the Supreme Court has held that non-conformity with any of the provisions of Section 165 Criminal P. C, must be confined to that part of the investigation which relates to the actual search and seizure but once the search and seizure is complete that provision seizes to have any application to the subsequent steps in the investigation. It may be that an obstruction during the course of search not conducted in conformity with the provisions of Section 165 Criminal P.C. might be justified but there is no ground for the further submission that the person whose premises is searched or from whom articles are seized is entitled to act in the manner the accused persons had acted in the case. The Supreme Court observed that by no stretch of logic or reason can the justification for obstruction during the course of search in contravention of the provisions of Section 165 Criminal P, C. entitle a person to force a public servant or any other person to do acts contrary to their volition,
20. From all the above discussions we are of the opinion that the provisions of Sees. 103 and 165 Criminal P. Cs are mandatory and not directory and they are required to be complied with. It is not only a formality to be kept in contempt and to be non-observed by assigning any weak reason or on some pretext. They are meant to be observed and are meant for safeguard. The search and seizure of the premises of any person are serious inroads or encroachments upon his right and the safeguards, therefore, are to be complied with and the non-compliance will vitiate the search, but the property recovered in such search may be used for the purposes of proving any contravention of any Taw. The recovery by itself will not be illegal, but the search may be without due exercise of power and will be bad in law. The point decided in 1969 All WR (HC) 8 Prabhu v. State (Supra) that the entire proceedings based on illegal search would be abinitio void is, therefore, not a good law. The recovery according to ourselves of any property which may De used for the purpose of proving contravention of any law will be available to the prosecutor for effectively prosecuting the case The principle laid down in 1968 All WR (HC) 39 : 1969 Cri LJ 952) (supra) that the non-observance of the salutary provisions of Section 165 Cri-minal P. C, did not amount to an ordinary irregularity curable under Section 537, Criminal P. C, is also no good law in view of the decision of the Supreme Court reported in : 2SCR807 Bai Radha v. State of Gujarat where the point which arose was whether the trial became illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the' Suppression of Immoral Traffic in Women and Girls Act, 1956. The Supreme Court held that the trial would not be vitiated for non-compliance of Sub-sections (1) and (2) of Section 15 of that Act unless it be shown that prejudice was caused by non-compliance. The ratio adopted by the Supreme Court was that when there was no provision contrary to Section 537 Criminal P, C. the section governs not only investigation and enquiry but also trial of the offence with which the accused might have been charged, In the circumstances of the case the Supreme Court hold that the Courts have to be very careful and circumspect in weighing the evidence where there has been a failure on the part of the investigating agency showing complete disregard of such provisions as contained in Sub-sections (1) and (2) of Section 15 of the Act and unless and until some prejudice i'1 shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside. In our opinion (he non-compliance of Section 165 Criminal P.C. may vitiate the search but the trial for offence or offences on the basis of recovery of the articles would in no case be affected, recommended no prejudice was caused to the of-1 fender.
21. The trial Court mainly placed reliance on the case reported in : 1960CriLJ286 (supra) : AIR1964Pat493 and (1965) 2 Cri LJ 843 (Punj) and held that the non-compliance of Section 165 Criminal P. C justified the respondents to resist the search and the obstruction caused by the respondents in the instant case by no stretch of imagination could constitute an offence punishable under S. 353 Criminal P.C. We have already discussed the case reported in : 1960CriLJ286 . In the case of Thakur Tanti v. State : AIR1964Pat493 the search itself was obstructed by the accused persons and it was found as a fact that the police officer who wanted to search the house of the accused for stolen articles was obstructed by the accused and he caused simple hurt with his teeth or nail or stone chips in order to extricate himself from the clutches of the public servant holding him. In the circumstances of that case it was held that the accused of that case could not be said to have exceeded his right of private defence and cannot be said to have committed an offence under Section 353 or Section 332 I. P. C, In the case of Prem Chand v. State ((1965) 2 Cri LJ 843) the Punjab High Court while dealing with the case of an accused who was a hotel-keeper held that the Excise Inspector when he proceeded to search the hotel premises without warrant and without recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which the search was to De made, his omission to do so rendered the search illegal and, therefore, the hotel-keeper and his servants were fully justified in resisting such a search in exercise of their right of private defence of property. The conviction under S. 332 I, P.C. was, therefore, set aside in that case. On the consideration of these authorities the trial judge leapt to the conclusion that the respondents in the present case had committed no offence. We do not agree with the finding recorded by the trial Judge. Under the Gold Control Rules there are various steps connected with the search and seizure to be taken by the officer or person authorised by the administrator. Under Rule 126-L (1) (b) any person authorised by the Administrator by writing in this behalf may seize any gold in respect of which he suspects that any provision of this part has been or is being or is about to be contravened, along with the package, covering or receptacle if any in which such gold is found and thereafter take all measures necessary for their safe custody. In the instant case according to ourselves as well, the search conducted on P.Ws. 1 and 4 of the premises of Shri Ram was illegal. On the facts of the case so far as seizure of the property relating to Shri Ram was concerned being gold ornaments which were omitted to have been entered in the register maintained by Shri Ram could be justified in law but the seizure of the ornaments belonging to Shiva Ram could not be Justified. His search was not warranted even. He may be a dealer under the Gold Control Rules but he was not required to maintain a register at the shop of Shri Ram. Although in his Jhola some or the articles mentioned at item No, 9 of the recovery memo were recovered but that recovery would not justify the seizure of the property of Shiva Ram. To that extent the seizure appears to be illegal and not justified. The learned State counsel also could not justify the seizure of these articles from the custody of Shiva Ram'. But the articles recovered from the possession of Shri Ram which were not entered in the register maintained by him were justiciable, The trial judge took strong exception to the use of the word 'confiscation' in the first information report and criticised the conduct of both the officials of the Central Excise Department and branded their conduct as 'reprehensible'. Maybe that by the use of that word Shri Ram may have apprehended the confiscation of the property by these persons but the use of that word could not justify the action taken by Shri Ram or by Duryodhan or Sant Prakash. Shiva Ram may be justified in obtaining or taking away the property which was not justifiably seized by the officials concerned. We have examined the evidence and have reviewed the entire evidence brought on the record and we have considered every matter having bearing on the question of fact and we have also considered the reasons given by the trial judge in support of its order of acquittal, The trial court did not give any reason as to why respondents Sant Prakash, Duryodhan and Shiva Ram became so minded as not to allow P.Ws. 1 and 4 to take the articles seized. Under the provisions of Rule 12R-L (1) (a) whatever properties were seized by these officers they were responsible to take all measures necessary for their safe custody. The gold ornaments and the register belonging to Shri Ram were being placed in safe custody and at that moment, the box was picked up and so the register, Nemani in execution of his duty as an officer of the Excise Department was discharging his lawful duty by taking measures necessary for the safe custody of the ornaments and the register and he was prevented by these three persons from discharging his duty. Action of Shiva Ram was tried to be justifed that he was in no way concerned nor his property could have been taken possession of or seized by these officers. The evidence on record as brought before the trial Court was not that Shiya Ram snatched the ornaments or the register. It is another matter that in the first information report a general statement that was brought on the record did not specify Shiva Ram as one of those actually perpetrating the crime. In the circumstances Shiva Ram although may have felt in the heart of his hearts that for his purpose the action taken by the three respondents was justified but he did not take any active part of the same. In the circumstances Shiva Ram cannot be said to have prevented or deterred in any manner the two officers from taking measures ne- cessary for the safe custody of the property. The trial Judge did not consider the evidence on record with this angle nor appreciated the same. He had leapt to the conclusion that the search was illegal and, therefore, no offence under Section 353 was committed by any of the respondents. We have given our thoughtful consideration and according to us on the basis of the evidence on record and in the absence of the finding by the trial Court, the three respondents did commit the offence punishable under Section 353 I. P. C The non-compliance with the requirements of Section 165 Criminal P, C. must be confined to that part of investigation which related to the actual search and seizure which was not obstructed. Once the search and seizure was complete that provision ceased to have any application to the subsequent steps in the investigation. The obstruction in the instant case, as we have held on the evidence on record was not caused during the course of search or seizure but it was caused thereafter. Therefore, there was no reason or justification for the obstruction being caused at the time when steps necessary for the safe custody of the property were being taken by Nemani and Misra.
22. It was urged on behalf of the respondents that in the exercise of right of private defence of their property they could resist the search in this case. We have already held that the search was not resisted nor the seizure was resisted. The property was taken away at a time when it was being sealed for being put in safe custody. There is no question or exercise of right of private defence of property. Shiva Ram is not stated to have done anything physically towards the protection of his property. The other three respondents whatever they did by taking away or removing the property, obstructed the public servants. They did not have any right as urged op behalf of the respondents. If the property was being sealed for being placed in safe custody they could have very well approached the authorities concerned for the return of the property. There was no question involved for the exercise of the right of private defence of property. In our opinion, therefore, the point has no force.
23. In the result we, therefore, hold that the provisions of Section 165 Criminal P.C. are mandatory and are not directory. The search conducted in contravention of that provision would be illegal but the recovery made in that search would not be illegal if the contravention of any of the provisions of any law can be correlated to the recovery made. The illegal search, if resisted, could be justified and the person resisting would not be liable for the offence either under S. 353 I. P.C. or under S. 332 I. P.C. In a case where the search is illegal and is not resisted and the seizure is not resisted and they are allowed to be completed, the further acts of obstruction when the public servants take steps in discharge on their lawful duty for the safe custody of the property, such obstruction would be an offence punishable under Section 353 I. P.C.
24. On the evidence on record, in our opinion, the acquittal of Munna Lai and Prem Saran was justified and needs no interference in appeal. As for Shiva Ram, in our opinion, his case is not free from doubt. On the review of the evidence no case against Shiva Ram is established. On the evidence on record, in our opinion, case against Shri Ram, Duryodhan and Sant Prakash is proved beyond doubt but in the circumstances of the case we take lenient view of the matter. We find them guilty under Section 353 I. P. C, convict all the three persons for the offence under Section 353/34 I. P.C. and sentence each one of them to pay a fine of Rs. 500/-(Rs, Five hundred) or in default of payment of fine to undergo rigorous imprisonment for one month. The appeal is thus partly allowed and partly dismissed.