M.R. Sharma, J.
1. This appeal against acquittal has been filed against the order dated 29th March, 1974, passed by the learned Additional Sessions Judge, Ambala, whereby he set aside the conviction of the respondents under Sections 353/186 read with Section 34, Indian Penal Code.
2. On 3rd August, 1973, Shri K. K. Sayal, Assistant Excise and Taxation Officer, P. W. 1, went to this circle for checking under Section 13 of the Punjab General Sales Tax Act, 1948 (as applicable to the State of Haryana). At that time, he was accompanied by Shri R. K. Gupta, P. W. 3, Excise and Taxation Inspector and Shri Ashok Kumar, Peon, P. W. 6. When the party was present at the crossing of Gur Bazar, Sadar Bazar and Bajajan Bazar, a person of the name of Jagdish Rai, Constable, P. W. 2, was seen coming and carrying pulses, salt, vegetable ghee, etc. Shri K. K. Sayal, P. W. 1, enquired from him whether he was in possession of a regular purchase voucher issued by the shopkeeper or not. Upon this, Jagdish Rai, P. W. 2, produced before him a kacha parchi, exhibit PC, signed by Rajeshwar Parshad, respondent. At. the instance of this witness, Jagdish Rai, P. W. 2, took him to the shop of this respondent, which is situate in the opposite corner of the Sadar Bazar. This respondent was found standing there. Shri K. K. Sayal, P. W. 1, then recorded the statement of Jagdish Rai, P. W. 2 and Rajeshwar Parshad, respondent, but the latter refused to sign the same. Thereafter, he enquired from this respondent as to why he had not issued a regular voucher as required under the Rules framed under Section 13(2) of the said Act. Thereafter, the witness demanded roznamcha from this respondent to see whether he had accounted for this sale in his record or not. Rajeshwar Parshad, respondent, was seen trying to hide two bahis behind the bags of foodgrains. The witness disclosed his identity, entered the shop of the respondents and took into possession two bahis belonging to the respondents. As soon as he had started inspecting them, Rajeshwar Parshad, respondent, pounced upon him for snatching away the bahis from him and asked one of the boys there to call the coaccused Rameshwar Dass. Shri K. K. Sayal, P. W. 1, however, passed on the bahis to his peon, Ashok Kumar, P. W. 6, for safe custody. The two respondents pounced upon him in order to snatch away the bahis and in this process they slapped him (Ashok Kumar, Peon, P. W. 6) also. Shri K. K. Sayal, P. W. 1, advised the respondents that they could have a receipt there and then in respect of these bahis if they so desired but the two respondents followed them calling bad names and administering threats. Shri K. K. Sayal, P. W. 1 and his staff took shelter in a neighbouring shop owned by one Pushap Rai, P. W. 4. Thereafter he sent a writing, exhibit PA, to the Station House Officer, Ambala Cantt., about this matter on the basis of which the first information report, exhibit PA/1, was lodged there. After the completion of the investigation, the two respondents were sent up for trial before the learned Judicial Magistrate, 1st Class, Ambala Cantt.
3. The prosecution relied upon the statements of Shri K. K. Sayal, P. W.I, Constable Jagdish Rai, P. W. 2, R. K. Gupta, P. W. 3, Pushap Rai, P. W. 4, A. S. I. Kanwal Kishore, P. W. 5, Ashok Kumar, Peon, P. W. 6 and Ram Mehar, P. W. 7. The learned trial Magistrate convicted the respondents under Sections 353/186 read with Section 34 of the Indian Penal Code and awarded them rigorous imprisonment for four months on each count. However, the substantive sentences of imprisonment were ordered to run concurrently.
4. The respondents went up in appeal which was allowed by the learned Additional Sessions Judge, Ambala, on the ground that Shri K. K. Sayal, P. W. 1, had no authority to enter the shop of the respondents and that Shri Jagdish Rai, Constable, P. W. 2, which was the main actor of the drama, was also an employee of the police.
5. In this appeal filed by the State of Haryana, an argument has been raised that the view taken by the learned Additional Sessions Judge was incorrect. For this purpose, reliance has been placed on Section 14 of the Act, the material portion of which reads as under :
14. (1) The Commissioner or any person appointed to assist him under Sub-section (1) of Section 3 not below the rank of an Assistant Excise and Taxation Officer may, for the purposes of this Act, require any dealer referred to in Section 10 to produce before him any book, document or account relating to his business and may inspect, examine and copy the same and make such enquiries from such dealer relating to his business, as may be necessary:
Provided that books, documents and accounts of a period more than five years prior to the year in which assessment is made shall not be so required.
(3) If any officer referred to in Sub-section (1) has reasonable grounds for believing that any dealer is trying to evade liability for tax or other dues under this Act and that anything necessary for the purpose of an investigation into his liability may be found in any book, account, register or document, he may seize such book, account, register or document as may be necessary. The officer seizing the book, account, register or document shall forthwith grant a receipt for the same and shall,
(a) in the case of book, account, register or document which was being used at the time of seizing, within a period of ten days from the date of seizure; and
(b) in any other case, within a period of sixty days from the date of seizure ;
return it to the dealer or the person from whose custody it was seized after examination or after having such copies or extracts taken therefrom as may be considered necessary, provided the dealer or the aforesaid person gives a receipt in writing for the book, account, register or document returned to him. The officer may, before returning the book, account, register or document, affix his signatures and his official seal at one or more places thereon and in such case the dealer or the aforesaid person will be required to mention in the receipt given by him the number of places where the signatures and seal of such officers have been affixed on each book, account, register or document.
(4) For the purposes of Sub-section (2) or Sub-section (3), an officer referred to in Sub-section (1) may enter and search any office, shop, godown, vessel, vehicle, or any other place of business of the dealer or any building or place except residential houses where such officer has reason to believe that the dealer keeps or is, for the time being, keeping any book, account, register, document or goods relating to his business.
(5) The power conferred by Sub-section (4) shall include the power to open and search any box or receptacle in which any books, accounts, registers or other relevant documents of the dealer may be contained.
6. It is submitted that under Section 14(1) quoted above an Assistant Excise and Taxation Officer has been expressly empowered to require any dealer produce before him any book or document or account relating to his business. This argument appears to be quite plausible. If the statute lays down that it would be open to an Assistant Excise and Taxation Officer to exercise powers mentioned in Section 14 of the Act, the learned appellate court should not have held against the State on that point. We, however, feel that there is another hurdle in the way of the State Government which is of a more formidable nature. Sub-section (3) of Section 14 of the Act casts a duty on the officer seizing the book, account, register or document to grant the receipt for the same forthwith and if the document seized relate to the current period to return them after ten days and to return them within a period of 60 days if they are of some different nature. On the point whether Shri K. K. Sayal, P. W. 1, offered any receipt to the respondents at the time when he seized the bahis, the evidence led by the prosecution is wholly unsatisfactory. This witness was cross-examined at some length on this point. The relevant replies to the questions put to him may be reproduced as under:
I have not stated this fact in my report, exhibit PA. Similarly, I had not stated in my report, exhibit PA, that I took two bahis from the shop of the accused and I offered to give a receipt in token of having received bahis, but the accused refused to take the receipt. I have not mentioned in the report, exhibit PA, that I told the accused that I and Raj Kumar and Ashok Kumar are Sales Tax Officers and then we could check the shop of the accused.
7. Had this witness made out a receipt and offered the same to the respondents at the time when he made seizure of the bahis, he would not have forgotten to mention this fact either in the first information report lodged by him or in the report exhibit PB which he submitted to his own authorities. Even when he entered the witness box, he merely stated that he advised the respondents that they could get a receipt there and then if they desired to do so. This statement implies that he was not keen to perform his own statutory duties of making out a receipt and offering the same to the respondents. The question which now remains to be considered is whether this part of the provision regarding the compulsory making of and the furnishing of the receipt to the dealer whose books are seized is mandatory or not. The provision regarding the compulsory return of the books after a specific period also gives an indication that this provision should be held mandatory. If we were to hold that this provision is directory in nature, this will entail untold hardships to the business community because in some cases the persons seizing the books would just decline to give the receipts and it would make well nigh impossible for the businessmen to retrieve their seized books. In State of Uttar Pradesh v. Babu Ram Upadhya A.I.R. 1961 S.C. 751, it was observed as under :
For ascertaining the real intention of the legislature, the court may consider, inter alia, the nature and the design of the statute and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom and, above all, whether the object of the legislation will be defeated or furthered.
8. The instant statute also employs the word 'shall'.
9. In view of all these considerations, we are of the view that it was mandatory on the part of Shri K. K. Sayal, P. W. 1, to have offered a receipt to the respondents at the time when he seized the bahis and the evidence led in the case does not conclusively establish that he took any such step. In Emperor v. Mohammad Shah A.I.R. 1946 Lah. 456, a Division Bench of this Court had an occasion to consider Section 165 of the Criminal Procedure Code, which provision to some extent is part materia with Section 14 of the Act. Marten, J., who wrote the leading judgment, observed as under :
A perusal of the general provisions contained in Chapter VII, Criminal Procedure Code, as regards search and entry, clearly discloses that it was the undoubted intention of the legislature to preserve the common right of privacy by requiring that no such entry or search should be conducted without the written order of a court. These provisions are based on the law of England where an Englishman's house is said to be regarded as his castle and cannot be easily invaded even by the Forces of the State. Similar safeguards are even more necessary in this country where an Indian's house is also his zenana, in which his womenfolk, who by custom must be protected from the gaze of strangers, should find safe asylum and refuge. Section 165, Criminal Procedure Code, was enacted as an exception to the general law of searches because it was recognised that in certain exceptional emergencies it was necessary to empower responsible police officer to carry out searches without first applying to the courts for authority. But it was clearly the intention of the legislature that the powers under this section should be limited and restricted and that those members of the general public against whom they were to be applied should be provided with safeguards in order to prevent abuse of these powers.
10. We are in respectful agreement with the view taken by the Division Bench. In that case also, the conviction of the accused persons under Section 353, Indian Penal Code, had been set aside on the ground that the search had not been properly made in accordance with Section 165 of the Criminal Procedure Code. Since in the instant case also, by not offering the receipt to the respondents, Shri K. K. Sayal, P. W. 1, did not act strictly in conformity with the provisions of Section 14 of the Act, we hold that the order of acquittal passed by the learned Additional Sessions Judge in their favour cannot be set aside.
11. For the reasons mentioned above, we find no force in this appeal and order the same to be dismissed.