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United Oil Mills Vs. Collector of Customs and Central Excise, Cochin - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKerala High Court
Decided On
Case NumberO.P. No. 138 of 1961
Judge
Reported inAIR1963Ker241; 1963CriLJ279
ActsCentral Excise Act, 1944 - Sections 18; Central Excise Rules, 1944 - Rules 9, 9(2), 52A and 201; Code of Criminal Procedure (CrPC) - Sections 165; ;Constitution of India - Article 20(3)
AppellantUnited Oil Mills
RespondentCollector of Customs and Central Excise, Cochin
Appellant Advocate M.I. Joseph and; T.M. Mathew, Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredNarayan Lal v. M. P. Mistry
Excerpt:
excise - conviction - section 18 of central excise act, 1944, rules 9, 52a and 201 of central excise rules, 1944, section 165 of criminal procedure code and article 20 (3) of constitution of india - petition filed challenging orders by which petitioner declared guilty of offences under rules 9 and 52a and penalty for same imposed - conviction based on statement given by petitioner - petitioner contended that statement given by petitioner could be relied upon as it contravenes provisions of article 20 (3) - for invoking constitutional right under article 20 (3) it must appear that formal accusation had been made against party invoking right - also acquisition must be made in relation to commission of offence which result in conviction - petitioner failed to prove any formal accusation -.....c.a. vaidialingam, j. 1. in this writ petition, mr. m. i. joseph, learned counsel for the petitioner, challenges two orders viz., exts. p. 3 and p. 4.2. ext. p. 3 is an order dated 14-4-1960, passed by the assistant collector of central excise, kozhikoda division, kozhikode, holding the petitioner guilty of offences under rules 9 and 52a of the central excise rules 1944, and imposing a penalty of rs. 200 on him under rule 9(2) of the said rules.3. ext. p-3 is also to the effect that 4342 1/4 ibs. of cocoanut oil and sediment in 142 tins, seized in the case under rule 9(2) of the central excise rules, has been confiscated to government. there is a further direction in ext. p.3 that the petitioner is at liberty to redeem the oil on payment of a fine of rs. 1500/-.4. ext. p-3 order was.....
Judgment:

C.A. Vaidialingam, J.

1. In this writ petition, Mr. M. I. Joseph, learned counsel for the petitioner, challenges two orders viz., Exts. P. 3 and P. 4.

2. Ext. P. 3 is an order dated 14-4-1960, passed by the Assistant Collector of Central Excise, Kozhikoda Division, Kozhikode, holding the petitioner guilty of offences under Rules 9 and 52A of the Central Excise Rules 1944, and imposing a penalty of Rs. 200 on him under Rule 9(2) of the said Rules.

3. Ext. P-3 is also to the effect that 4342 1/4 Ibs. of cocoanut oil and sediment in 142 tins, seized in the case under Rule 9(2) of the Central Excise Rules, has been confiscated to Government. There is a further direction in Ext. P.3 that the petitioner is at liberty to redeem the oil on payment of a fine of Rs. 1500/-.

4. Ext. P-3 order was challenged by the petitioner in appeal, taken before the Collector of Customs and Central Excise, Cochin. Under Ext. P-4, the latter officer confirmed the order of the Assistant Collector, Central Excise, Kozhikode, under Ext. P. 3.

5. These are, as I mentioned earlier, the two orders that are challenged in this writ petition.

6. Before I go into the contentions raised on behalf of the petitioner by his learned counsel, Mr. H. I. Joseph, I will set out a few facts which will show the clrcumstances under which action was taken by the Central Excise authorities as against the petitioner.

7. The Department appears to have received anonymous letters to the effect that the petitioner was evading payment of excise duty. On the basis of those letters, the preventive team, assisted by the local Central Excise. Officers, searched the premises of the petitioner on 27-1-1960. Admittedly, no irregularities were noticed in the premises, where the petitioner was carrying on his oil business. But a godown, situated very near the premises in question, was also searched; and according to the Department, 136 tins of cocoanut oil and 6 tins of sediment, in all 142 tins, were found in the said godown, which also had a false name board outside.

8. According to the Department, the petitioner, at about the same time on the same date, viz., 27-1-60, when the search was effected, gave a statement. That statement is Ext. P-2. I will revert to this statement a little later. But it is enough now to take note of the fact that according to the Department, in the said statement, Ext. P-2 the petitioner had admitted the fact that the tins of oil and the sediment discovered in the godown were illicitly removed by him from his oil mills, viz., the United Oil Mills, without payment of Excise duty and without a gate pass and the petitioner also agreed to get the goods released on payment of the necessary fine.

9. There was a show-cause notice issued on 13-2-1960, setting out all the circumstances, and also asking the petitioner to show cause as to why action should not be taken on the basis of Rules 9 and 52A of the Central Excise Rules, 1944. The petitioner did send an explanatory statement immediately on receipt of the show-cause notice, and the statements are Exts. P-1 and P-2.

10. in Ext. P-1, the petitioner, after referring to various matters, has stated that he decided to do some profitable side business, and started purchasing loose oil and oil cakes from village ghanj owners and hawkers, and that such oil was stored in good tins and kept in the room away from the mills, for sale at the proper time when the price of oil goes up. The petitioner also, among other matters, stated that the said tins were not marked or numbered, since the oil was not received from mills, but from village ghanies only.

11. The petitioner then states in Ext. P-1 that the anonymous petitions must have been sent by his political enemies, the Communists, and that there is absolutely no basis for the allegations.

12. The petitioner later on states that the allegation that the 136 tins of oil have been stored in separate premises away from his mills, is also not true, and that he has given proper explanations to the officers regarding his defence. But he also states that as the goods were seized, and in view of the threats made by the officers, and in order to avoid a scene at that time, he agreed to give the statement Ext. R-2. The petitioner, in the statement Ext. P-1, also makes a request for being heard in person before the case is adjudicated.

13. The petitioner also sent another statement Ext. P-2 on 31-3-1960, which deals more elaborately with his. contention that the statement Ext. R2 was not given by him voluntarily and that it was taken from him under threat and coercion, and that the said statement cannot be used against the petitioner. No doubt, he also reiterates that he is not guilty of the offences for which he was charged viz., under Rules 9 and 52A of the Central Excise Rules.

14. The Assistant Collector of Central Excise, Kozhlkode heard the matter, and by his order dated 14-4-1960 viz., Ext P-3, ultimately imposed the penalty and also passed the order of confiscation.

15. Ext. P-3 sets out the circumstances under which the search had to be conducted in the godown adjoining the mills of the petitioner. It is also stated that the managing partner of the petitioner was present, and he himself produced the key of the said godown, no doubt, a little later, and the godown was opened in the presence of the managing partner, and the said godown, which, according to the Department, contained a false name-board, was found to contain 142 tins, out of which 136 contained cocoanut oil and the rest sediment. The weight of these articles has already been given above.

16. The Assistant Collector also refers to the fact that the officers who conducted the search, seized the tins of cocoanut oil, and also refers to the statement said to have been given by the petitioner on 27-1-1960.

17. The Assistant Collector then refers to the explanatory statements furnished by the petitioner, viz., Exts. P-1 and P-2, and also refers to the personal hearing that was given to the petitioner through his counsel on 31-3-1960. It is the view of the Assistant Collector that in the written affidavit filed by the petitioner through his counsel, the licensee, i.e., the petitioner, has merely repeated the same things that have been stated by him in Exts. P-1 and P-2. It is also stated that the petitioner has denied having admitted to the Officers concerned, the removal of the 142 tins, which were the subject of the offence, from his mills.

18. The Assistant Collector then states that though the petitioner claimed to have independent accounts, to show how the 142 tins of oil and sediment were purchased by him from village ghanies, he has not chosen to accept those accounts. Then he refers to the case of the petitioner regarding the ownership of the godown, wherefrom these goods were seized.

19. Ultimately, the Assistant Collector comes tothe conclusion that the evidence on hand makes out veryclearly, beyond any doubt, that the 142 tins of oil andsediment discovered from the godown, were only removedfrom the United Oil Mills, evating payment of CentralExcise duty and contrary to the rules regarding removalof oil from the mills.

20. On this basis, ultimately, the Assistant Collector imposed the penalty, and also the order of confiscation was passed.

21. As I mentioned earlier, an attempt made by the petitioner to challenge the order of the Assistant Collector, did not yield any result, as will be evident front the appellate order Ext. P-4, passed by the Collector of Customs and Central Excise.

22. In Ext. P-4, after noting the contentions of the petitioner, the Collector of Customs and Central Excise states that no fresh points have been made out before him and that he sees no reason to Interfere with the order Ext. P-3 passed by the Assistant Collector.

23. Exts. P-3 and P-4 are the two orders that are challenged rather strenuously by Mr. M. I. Joseph, learned counsel for the petitioner.

24. No doubt, in the counter-affidavit filed on behalf of the Collector of Customs and Central Excise, the Collector sets out the various circumstances under which the search was conducted on 27-1-1960, and also refers to the Seizure of 136 tins of cocoanut oil and 6 tins of sediment from the godown. The Collector also refers to the statement, which, according to him, was freely and voluntarily given by the petitioner on 27-1-1960, admitting ownership of the 142 tins, as well as admitting the fact that those goods have been transferred from his mills to that place and that in respect of those goods the petitioner has not paid excise duty.

25. The Collector then emphasises that the petitioner has been found guilty of contravening Rules 9 (1) and 52A of the Central Excise Rules.

26. After referring to the order of the Assistant Collector viz., Ext. P-3, the Collector refers to his, own order Ext. P-4, and states that as there was no merit in the petitioner's appeal, it was dismissed.

27. Then the Collector refers to the circumstance that at the time of the seizure or the search, no accounts or bills, in respect of the purchase of any village ghani oil relating to the 142 tins, were found in the mills or the said godown, and that the petitioner also did not produce any account books or bills in respect of the alleged purchase when he submitted the explanation Ext. P-1 to the show-cause notice issued by the Department.

28. The Collector then refers to the mahazar and the petitioner's statement at the time of the seizure. But it is not necessary to go into those aspects again.

29. The Collector then states that the statements contained in Ext. R2 represent true facts, and that the statement was read over to the petitioner, who acknowledged it to be correct and put his signature to that statement, and that the statement has been attested by one of the employees of the mills of the petitioner. Ultimately, the Collector states that the petitioner, if he was aggrieved by his order, could have taken up the matter to the Central Board of Revenue.

30. Mr. M. I. Joseph, learned counsel for the petitioner raised two broad contentions, viz., (1) that the search and seizure effected by the Customs authorities on 27-1-1960, are contrary to the provisions of Section 165 of the Code of Criminal Procedure, read with Section 18 of the Central Excises and Salt Act, 1944 (Act I of 1944). Therefore, the learned counsel urged, that, inasmuch as the seizure and search are illegal, the further proceedings taken by the Excise authorities, which have resulted in the orders Exts. P-3 and P-4, are also illegal and void.

31. The second contention that has been raised by Mr. M. I. Joseph, learned counsel for the petitioner, is that the statement recorded from the petitioner viz., Ext. R2, should not have been relied upon in the circumstances of this case, because it contravenes the provisions of Article 20(3) of the Constitution. According to the learned counsel, inasmuch as the conviction of the petitioner has been almost exclusively and summarily based by the authorities on Ext. R2, the orders Exts. P-3 and P-4 are for that reason, also illegal and void.

32. No doubt, in respect of the second contention raised, the learned counsel also urged some subsidiary points viz., that even assuming that Ext. R2 can be considered as a relevant piece of evidence against the petitioner, inasmuch as the petitioner has categorically raised the plea that the statement Ext. R2 was recorded from him under duress or coercion, the authorities should have enquired into this matter more carefully and allowed the petitioner to satisfy the authorities regarding those allegations. In any event, the learned counsel urged, that the authorities should also have insisted upon some independent corroboration, at any rate, regarding the matters mentioned in Ext. R2.

33. On the other hand, the learned Government Pleader has urged that the mere circumstance that there is an irregularity or some illegality committed in the matter of the search conducted by the excise authorities, does not lead to the further conclusion that the entire proceedings taken on the basis of that search, which has, no doubt, resulted in imposing a penalty on the petitioner,, is also illegal. The learned Government Pleader also urged that, notwithstanding the irregularity or infirmity, if any, in the matter of the search, the further proceedings can be sustained, and, on that ground, the orders Exts. P-3 and P-4 do not require any interference by this Court, because they can very well stand notwithstanding any slight infirmity, which may attach to the search.

34. The learned Government Pleader further urged that there is no question of any violation of Article 20(3) of the Constitution coming into the picture at all. He also urged that in this case at the time the statement Ext. R2 was recorded from the petitioner on 27-1-1960 one of the essential requisites for invoking the provisions of Article 20(3) viz., of the petitioner being accused of any offence, is totally absent, if at all, the petitioner may be considered to have been charged or accused of an offence, only when the show-cause notice was issued by the Department on 13-2-1960.

35. The learned Government Pleader then urged that the plea that is sought to be made out in this court viz., that the petitioner had not been given any opportunity for substantiating his case that the statement Ext. R2 was taken from him by undue influence, threat or coercion, should not be allowed to be raised, because, according to learned Government Pleader, no such opportunity was asked for by the petitioner before the inquiring authority, viz., the Assistant Collector, in this connection the learned Government Pleader drew my attention to the statements contained in the counter-affidavit filed by the Collector of Customs and Central Excise, wherein that Officer has categorically stated that the petitioner did not ask for any such opportunity being given before the Assistant Collector, and that the petitioner was at no time denied any opportunity to let in any evidence, if he so chose.

36. On the other hand, the learned Government pleader urged that the Collector has also averred that the petitioner was given full opportunity to adduce all evidence in support of his contentions, and in fact, the snow-cause notice gives the right to the petitioner to produce, at the time of hearing all the evidence in support of his defence. In fact, the learned Government Pleader also urged that the petitioner had asked for an opportunity of being heard in person and that opportunity was fully availed of by him, by appearing before the Assistant Collector, and also got the facility of being represented by counsel at all material and relevant stages. Therefore, the learned Government Pleader urged that this contention, based upon the denial of opportunity, is absolutely devoid of any merit

37. The learned Government pleader also urged that there is no question of any corroboration, being required for R2, because the order imposing the penalty under EXT. P-3, will clearly show that the statement given by the petitioner under Ext. R2 was only one of the factors takes into account by that authority for imposing the penalty. Therefore, the Officer himself has considered the various circumstances under which the plea of the petitioner, about his not having had opportunity to adduce evidence, was raised. It is only after a consideration of all the material factors, the learned Government Pleader urged, that the Assistant Collector held the petitioner guilty of the rules in question.

38. Before I consider the major contention raised by Mr. M. I. Joseph, learned counsel for the petitioner, based upon the violation of Section 165 of the Code of Criminal Procedure, read with Section 18 of the Central Excises and Salt Act, as also the violation of Article 20(3) of the Constitution, I can well dispose of the minor contention raised by the learned counsel, to which I have already made reference.

39. I am not inclined to accept the contention of the learned counsel for the petitioner that there has been a denial of opportunity to his client for adducing any evidence in respect of any matter that he wanted. On the other hand, it is seen that the petitioner had asked for a personal hearing, and that was admittedly given, as will be seen from Ext. P-3. Trial order will also show that the petitioner was represented by counsel, and he has also filed a full and complete statement. No doubt in the grounds given in the affidavit filed in support of the writ petition, the petitioner has stated that the Assistant Collector should have given him an opportunity to establish his contention that the statement Ext. R2 has been taken from him under threat or compulsion, in fact, in Clause (f) of the grounds in paragaph 14 of the affidavit, the petitioner avers that ha was compelled to sign the statement Ext. R2 and that it was obtained from him by compulsion and that there has been a failure to decide this material point without giving him an opportunity to let in evidence on this point.

40. So far as this is concerted, the Collector of Customs and Central Excise has categorically traversed these allegations in the counter-affidavit filed by him, especially in paragraph 19 thereof. There, the collector states that this contention of the petitioner, that Ext. R2 was not voluntarily executed by rum or the further averment that it has been executed by him under threat or coercion, is absolutely false. The Collector has also stated that there has been absolutely no denial of any opportunity to the petitioner for letting in any evidence in support of his contentions. On the other hand, the Collector states that the petitioner was given full opportunity to produce all the evidence, on which he intends to rely in support of his defence. The Collector positively states that the petitioner did not pray for any opportunity to adduce further evidence; nor did he pray that any witnesses should be summoned in support of his defence. I am prima facie inclined to accept the statements made by the Collector of Customs and Central Excise, in these circumstances.

41. Therefore, it is not possible for me to accept the contention of the learned counsel for the petitioner that there has been a denial of any opportunity to the petitioner to place any evidence that he wanted to place in respect of his contention, that Ext. R2 was got from him by undue influence, threat or coercion.

42. Apart from the legality of the search and the contention that the statement Ext. R2 should not be acted upon in view of Article 20(3) of the Constitution, which aspects will be considered later, there is this significant fact viz., that the search admittedly took place on 27-1-1960, and en that date the statement Ext. R2 was also given by the petitioner to the Department. The petitioner, it should be remembered, did not at all attempt to controvert either the fact of his having given Ext. R2 or regarding the truth of the statements contained therein, till he sent his reply on 22-2-1960 to the show-cause notice received by him on 17-2-1960.

43. If really the petitioner had a genuine grievance about the circumstances under which, he now stresses before me, Ext. R2 was taken from him under duress or coercion, there was certainly a duty on his part, the moment the undue influence or coercion ceased to exist, or at any rate, as early as convenient, or late in the day on 27-1-1960, to make a grievance of it at the earliest occasion possible. Therefore, there is considerable force in the aspect that is pressed before me by the learned Government Pleader that this case of Ext. R2 having been taken from the petitioner under undue influence, threat or coercion, cannot certainly be accepted by this Court in proceedings under Article 226 of the Constitution.

44. The question of corroborate regarding Ext. R2, in my view, also does not assume much importance or significance in this particular case. No doubt, Mr. M. I. Joseph, learned counsel for the petitioner urged that the petitioner being in the position of an accused, when he had stated the circumstances according to him, under which Ext. R2 was taken from him, the Assistant Collector should have investigated the matter a little more closely and satisfied himself that there was also other independent evidence from which he could have come to the conclusion that the petitioner is guilty of violation of Rules 9 and 52A of the Central Excise Rules.

45. A perusal of the order of the Asst. Collector, Ext. P-3, will show clearly that he has not based his conclusion, as urged by Mr. M. I. Joseph, either exclusively or solely on Ext. 82. He would have been, in my view, perfectly justified in basing his conclusion on Ext. R2 alone. But that is not what the Assistant Collector has done in this particular case. He has considered the plea of the petitioner and has also set out in seriatim the various factors, which according to him, wilt establish that the petitioner is guilty of violation of the two rules in question. No doubt, among those factors, the Assistant Collector has also mentioned the circumstance that the petitioner has, at the time of the seizure, admitted that 142 tins of oil and sediment were smuggled out of the mills without paying duty and without gate pass. That statement given by the petitioner on 27-1-1960, has been signed by the managing partner and also by an independent witness and also by one of his own subordinates.

46. Thereafter, the Assistant Collector refers to the plea of the petitioner that the production in his mills, with five rotaries in one shift, cannot exceed 6 cwts. per shift. He also refers to the plea of the petitioner regarding the quantity of copra shown in his books of account. Then he refers to the plea of the petitioner of purchasing village ghani oil and hawked oil from 12-12-1959. The Assistant Collector also refers to the goods in question having been seized from a godown, the key of which was admittedly produced by the managing partner and was opened by him, and also the admission of ownership of the articles found therein.

47. Then the Assistant Collector refers to what transpired at the personal hearing of the petitioner, whereto it appears to have been urged that it was absolutely impossible for the petitioner to commit any offence, as he was always surrounded by a resident special officer of Central Excise with a sepoy, for round-the-clock watching of the premises. That aspect also is considered by the Assistant Collector; and it is after a consideration of as many as seven factors, one of those factors being, no doubt, the statement given by the petitioner on 27-1-60 viz., Ext. R2, that the Assistant Collector has ultimately come to the conclusion that the plea of the petitioner, that he is not guilty of contravention of Rules 9 and 52A of the Central Excise Rules, cannot be accepted. Therefore, this at any rate, is not one of those cases where it can be said that the petitioner has been found guilty exclusively or solely upon the basis of Ext. RZ.

48. Now I will consider the two major contentions raised by Mr. M. I. Joseph, learned counsel for the petitioner. As I mentioned earlier, the first contention is that the search and seizure made on 27-1-1960 are illegal. In this connection the learned counsel referred me to Section 18 of the Central Excises and Salt Act, 1944 Section 18 is as follows:

'All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898), relating respectively to searches and arrests made under that Code.'

The only other provision to be noted is Rule 201 of the Central Excise Rules. It deals with the power of the officers to enter and make searches, and is as follows:

'The Central Government may empower any officers of any department under its control to-

(1) enter and search at any time, by day or by night any land, building, enclosed place, premises, vessel, conveyance or other place upon or in which he has reason to believe that excisable goods, saltpetre or splints or veneers for the manufacture of matches are processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or these Rules and

(2) in case of resistance break open any floor and remove any other obstacle to his entry upon or into and search of such land, building, enclosed place, premises, vessel, conveyance or other place.'

49. it will be seen that this Rule gives power to the officers empowered by the Central Government to enter and search by day or by night any of the places mentioned therein, where the officer has reason to believe that excisable goods etc., are manufactured or carried on in contravention of the provisions of the Act or the Rules. Clause (2) of this Rules gives power, in the case of resistance, to break open the door and remove any other obstacle.

50. in this case, there can be no controversy that the search was made on the basis of the powers conferred on the officers under Rule 201 of the central Excise Rules.

51. The material provision in the Code of Criminal Procedure is Section 165. That Section deals with search by police officers. It is not necessary to extract here Section 165, because, so far as the present case is concerned, on the materials on record there can be no controversy that the various matters mentioned therein have been not complied with. Therefore, I will proceed on the basis that the provisions of Section 165 of the Code of Criminal Procedure, which will stand attracted to cases of search by virtue of Section 18 of the Central Excises and Salt Act, referred to above, have not been complied with in this case.

52. Then the question is as to what exactly is the legal position of non-compliance with the provisions of Section 165 of the Code of Criminal Procedure. According to Mr. M. I, Joseph, learned counsel for the petitioner, the only conclusion that can be arrived at is that the entire proceedings taken on the basis of that illegal search, leading up to the final orders namely, Exts. P-3 and P-4, are illegal and void. The learned counsel, no doubt, referred me to the decision of the Supreme Court reported in State of Rajasthan v. Rehman, AIR 1960 SC 210 where their Lordships had to consider the scope of Section 16 of the Central Excises and Salt Act, 1944, as well as Rule 201 of the Central Excise Rules 1944 and also Section 165 of the Code of Criminal Procedure. Mr. Justice Subba Rao, speaking for the Court, if I may say so with great respect, after a consideration of the various provisions is ultimately of the view that a comparative study of the various provisions with the provisions of Rule 201 of the Central Excise Rules, indicates that searches made by a Police Officer during the course of an investigation of a cognizable offence, can properly be approximated with the searches to be made by the authorised officer under Rule 201 of the Central Excise Rules.

53. Then the learned Judge winds up the discussion on this point at page 213, as follows:--

'We think that the Legislature by stating in Section 18 of the Act, that the searches under the Act and the Rules shall be carried out in accordance with the provisions of the Code relating to searches, clearly indicated that the appropriate provisions of the Code shall govern searches authorised under the Act and the Rules, we, therefore, hold that the provisions of Section 165 of the Code of Criminal Procedure must be followed in the matter of searches under Rule 201 of the Rules'.

Therefore, the view of the Supreme Court is that searches under the Act and the Rules are to be carried cut in accordance with the provisions of Section 165 of the Code of Criminal Procedure.

54. Relying upon the above observations of the Supreme Court Mr. M. I. Joseph, learned counsel for the petitioner urges that the natural result flowing from the principles laid down by the Supreme Court, is that the orders under attack will have to be set aside as illegal and void. On the other hand, the learned Government Pleader has drawn my attention to the Full Bench decision of this Court reported in C. velayudhan v. State of Kerala, 1960 Ker LJ 753: (AIR 1961 Ker 8) (FB). In that case, the Full Bench had to consider also the scope ot the decision of the Supreme Court, relied upon by Mr. M. I. Joseph, learned counsel for the petitioner, in this case, viz., AIR 1960 SC 210. At p. 757 of the report (Ker LT): (at p. 10 of AIR), the learned Judges of the Full Bench consider the effect of a contravention of the provisions contained in Sections 103 and 165 of the Code of Criminal Procedure. If the search was thereby defective, it is the view of the learned Judges that the decisions have uniformly held that it will not vitiate the trial or make the evidence of the search officers inadmissible in evidence. The learned Judges also specifically deal with the decision of the Supreme Court in AIR 1960 SC 210 and state that the Supreme Court had no occasion to consider the effect of the recovery of the incriminating articles in pursuance of that search. It is again the view of the Full Bench that, being an illegal search, the respondent in the Supreme Court, case, in obstructing the public servant from making such a search, did' not commit any offence, and therefore, the Supreme Court confirmed the order of acquittal passed by the High Court, which itself confirmed the order of acquittal passed by the Magistrate.

55. The above Full Bench decision of this High Court has been relied upon by the learned Government Pleader in support of the contention that, even assuming that there is an infirmity or irregularity in the matter of search, inasmuch as it has not been conducted in full compliance with the provisions of Section 165 of the Code of Criminal Procedure the entire proceedings leading up to Exts. P-3 and P4 cannot be set aside; nor can it be held to be illegal or void, as contended for by the learned counsel for the petitioner.

56. In my view, the contentions of the learned Government Pleader on this aspect have to be accepted. The decision of the Supreme Court has been considered by a Full Bench of this Court, which I have already referred to: and the Full Bench, after referring to the principles laid down by the Supreme Court, has held that the mere circumstance that there is an infirmity or illegality in the matter of non-compliance with the provisions of Section 165 of the Code of Criminal Procedure, will not by itself invalidate the entire proceedings which resulted in the conviction of the party on the basis of the materials discovered in the course of the search. Therefore, notwithstanding the fact, that in this case, the search conducted on 27-1-1960, was not in accordance with the provisions of Section 165 of the Code of Criminal Procedure, does not also inevitably lead to the conclusion that the orders Exts. P-3 and P-4 are also illegal and void.

57. The second contention raised by Mr. M. I. Joseph, learned counsel for the petitioner, is that the statement Ext. R2, should not at all. have been relied upon as a piece of evidence as against the petitioner, because of the provisions contained in Article 20(3) of the Constitution. Here again, there is considerable difficulty in accepting the contention of the learned counsel. No doubt, the learned counsel referred me to the observations of the Supreme Court in the recent decision reported in Narayan Lal v. M. P. Mistry, AIR 1961 SC 29 at p. 38, wherein their Lordships have observed that for invoking the constitutional right against testimonial, compulsion guaranteed under Article 20(3), it must appear that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission of an offence, which in the normal course, may result in prosecution.

58. it is the contention of the learned counsel for the petitioner in this case, that on the date when the search was made, it must be considered that there is a formal accusation as against the petitioner. The learned counsel tried to reinforce his argument by referring to the circumstance that there was an actual seizure, and a mahazar was prepared regarding the 142 tins of coconut oil and sediment. Therefore, all these circumstances according to the learned counsel, will clearly show that there has been a formal accusation as against the petitioner.

59. I am not inclined to accept this contention of the learned counsel for the petitioner. There has been no accusation much less a formal accusation, as against the petitioner on 27-1-1960. If at all, that accusation must be considered to have been made only on 13-2-1960, when the show-cause notice was issued by the Department to the petitioner, under Rules 9 and 52A of the Central Excise Rules, charging him of having violated those rules. Therefore, in this case it cannot certainly be said that Ext. R2 cannot be put Into service by the Department as against the petitioner. There is also no question of violation of Article 20(3) of the Constitution coming into the picture.

60. Therefore, the various contentions raised by Mr. M. I. Joseph, learned counsel for the petitioner, are negatived.

61. in the result, the writ petition fails, and isaccordingly dismissed. But there will be no order as tocosts.


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