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Queen-empress Vs. Kalian and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad310
AppellantQueen-empress
RespondentKalian and ors.
Excerpt:
penal code - act xlv of 1860, section 224--escape from lawful custody--salt act (madras)--act iv of 1889, sections 46, 47. - - in the present case we find that the sub-inspector failed to comply with the law, and that his arrest of the accused was unlawful......to believe that contraband salt is being...kept in any place and that the delay in obtaining a search-warrant will prevent the discovery thereof' after certain formalities to search such place, seize any contraband salt therein, and arrest any person concerned in the keeping of such salt. the sub-inspector has sworn that he got information that there was contraband salt in the paracheri of puthur about 9 p.m. on the 17th march; that he had no time to get a search-warrant from the magistrate before the next morning, and that had he waited until the next morning to obtain a search-warrant the matter would undoubtedly have come out, as twenty or thirty warrants would have to be prepared by the clerks, and that the salt would have been destroyed. he admits that he applied for police aid.....
Judgment:

1. The Stationary Sub-Magistrate of Chidambaram convicted eighteen pariahs of Puthur, who had been arrested by officers of the Salt Department on the 18th March 1895, of having escaped from lawful custody on the same day, an offence punishable under Section 224, Indian Penal Code.

2. On appeal, the Head Assistant Magistrate acquitted them on the ground that the salt officers had made the arrest unlawfully, and that escape from such custody was no offence.

3. Against this acquittal the Public Prosecutor now appeals on behalf of Government.

4. It is admitted that the Sub-Inspector of the Salt Department had no other authority to make the arrests than that given by Section 47 of the Madras Salt Act, 1889. The question is whether, under the circumstances, his action was in accordance with the provisions of that section. It empowers an officer of the Salt Department whenever he 'has reason to believe that contraband salt is being...kept in any place and that the delay in obtaining a search-warrant will prevent the discovery thereof' after certain formalities to search such place, seize any contraband salt therein, and arrest any person concerned in the keeping of such salt. The Sub-Inspector has sworn that he got information that there was contraband salt in the paracheri of Puthur about 9 P.M. on the 17th March; that he had no time to get a search-warrant from the Magistrate before the next morning, and that had he waited until the next morning to obtain a search-warrant the matter would undoubtedly have come out, as twenty or thirty warrants would have to be prepared by the clerks, and that the salt would have been destroyed. He admits that he applied for Police aid a week previously, but says it was to aid in searching villages generally, and that there were several notorious villages in the neighbourhood. He says he only got definite information of the houses and the owners' names on the night of the 17th. These statements are not contradicted by any evidence, and we are not disposed to regard them as false. We think, however, that there can be little doubt but that the Sub-Inspector could have obtained the information sooner had he cared to do so, and that, in any case, he could have applied to the Magistrate for a search-warrant even after he got the information, and was not justified, under all the circumstances, in making the search and arrest without doing so. The Sub-Inspector asked for Police aid a week before the 17th. It was not, in fact, used for any search except that of Puthur. The Sub-Inspector's petty officer, Arunachella Pillai, knew that there was contraband salt in Puthur for two or three days before the 17th; but he says that he did not tell the Sub-Inspector until the night of the 17th and adds 'I do not volunteer information to my superiors, but if they ask me I inform them.' It seems to us clear that the Sub-Inspector knew in a general way that there was contraband salt in the paracheri of Puthur for some days before the 17th, and that he could have learned full particulars had he chosen to enquire of his petty officer. It can hardly be believed that he was in ignorance that the latter was in possession of detailed information. The Sub-Inspector says that during the past four years he has conducted some two hundred searches, but has never once applied to the Magistrate for a warrant. It seems to us that this indicates the existence of a system whereby the intention of the Legislature is habitually frustrated. It is clear from Section 46 of the Act that it contemplates searches being ordinarily made under the authority of warrants issued by a Magistrate. Section 47 was intended to be availed of only in cases where 'the delay in obtaining a search-warrant' from a Magistrate would prevent the discovery of the salt. The Act does not allow a salt officer to make a search without warrant because he fears that the publicity involved in asking for a warrant-will prevent the discovery of the salt. He has power to make the search only when the delay involved in getting a warrant would prevent such discovery. Apparently, however, the system of this Sub-Inspector is never to get definite information until just before the time of the intended search, and then to make the search himself without warrant, alleging in justification that the delay in obtaining the warrant would lead to the destruction of the salt. We think that this system, if it exists, as it appears to do, is an abuse of the powers given by the Act which calls for the attention of Government and of the superior officers of the Salt Department.

5. In the particular case now before us, the evidence shows that the Sub-Inspector could have obtained the Magistrate's warrant without causing any delay whatever in conducting the search. The Sub-Inspector received detailed information at Mannargudi at 9 P. M. on the 17th March. He and his men did not start for Puthur until 2 A. M. the next day. He thus had five hours wherein to have gone to the Magistrate and got a warrant. The Magistrate lived only 'one or two furlongs' away from where the Sub-Inspector was, so that the time that would have been required would not have been more than a few minutes. It is suggested that twenty or thirty warrants would have had to be written, and that the Magistrate could not be asked to do this at night and without the aid of his clerks. We observe that there are twenty-eight houses, and only twenty-eight, in the Puthur paracheri, and all of these were searched. The Sub-Inspector, therefore, had reason to believe that there was contraband salt in every house in the paracheri, and intended to search them all. He could, therefore, have asked for a single warrant to search all the houses in the paracheri. This could have been granted by the Magistrate and written with his own hand in a few minutes. A Magistrate is always on duty, and must be prepared to act, on urgent occasions, at other than the ordinary office hours. We think that in the present case no delay ought to, or would have resulted, had the Sub-Inspector applied to the Magistrate for a warrant. That being so, he was bound by law to have obtained the warrant before making the search, and the search without warrant, and the arrests which followed it, were both illegal. We cannot admit the contention of the Public Prosecutor that the exercise of the power given by Section 47 is 'left entirely to the discretion' of the officer concerned, and that the wrongful exercise of the discretion does not make the arrest invalid. The officer has power only within the limits allowed by law, and must exercise his powers strictly in accordance with law. When he fails to do so his action is illegal, and the arrest is unlawful. If the arrest is unlawful, there is no offence under Section 224, Indian Penal Code, in escaping from it. In the present case we find that the Sub-Inspector failed to comply with the law, and that his arrest of the accused was unlawful. They were, therefore, rightly acquitted, and we dismiss this appeal.


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