Ghose and Gordon, JJ.
1. The petitioners have been convicted by the Deputy Magistrate of Puri of offences punishable under Sections 147 and 353 of the Penal Code, and have been sentenced each to two months' rigorous imprisonment. On appeal the conviction and sentences have been affirmed by the Sessions Judge, The facts found by both lower Courts are that Janki Nath Basu, Special Excise Sub-Inspector of Puri, having received information that gurjat-ganja was concealed in the house of the petitioner, Jagarnath Mandhata, went to his house to search it, accompanied by certain Police Officers and Excise peons, and that he and his party were opposed by the petitioners and others in their attempt to search the house in question, and were at the same time assaulted. The main ground urged in support of the rule, which we granted on the application of the petitioners, is that, inasmuch as gurjat-ganja is a 'foreign excise-able' article as defined in Section 4 of Bengal Act VII of 1878 (as amended by Bengal Act IV of 1881), it is not included in the term 'exciseable article' as used in Sections 75 and 4 of that Act; and consequently the Excise Officer had no legal authority under Section 40 to enter and search the house of Jagarnath Mandhata. We have considered the terms of the various Sections referred to, and the definitions of 'exciseable' and 'foreign exciseable' article, as given in the Act, and we are of opinion that the Excise Officer had no legal authority to search the petitioner's house. Section 4 of the Act, as amended by Bengal Act IV of 1881, contains separate and distinct definitions of 'exciseable article' and 'foreign exciseable article,' and therefore, we think, that, whenever either of these expressions occurs in the Act, it is used in the sense and with the meaning given to it in the definitions. The words used in Section 75 are 'exciseable article' and the words 'foreign exciseable article' do not occur therein, so that in the view we take the Excise Officer in the present case had no authority under Section 40 to enter and search the petitioner's house; he had authority only to search for any exciseable article as defined in Section 4 of the Act.
2. The learned Judge has expressed the opinion that, reading Sections 4, 17 and 17A together, 'exciseable article' includes 'foreign exciseable article,' and that the latter is only a 'particular Sub-class,' under the former class; and that Section 75 is therefore applicable to gurjat-ganja. We are, however, unable to adopt that view. As already stated, Section 4 distinguishes between exciseable' and 'foreign exciseable' articles.
3. Section 17 refers to exciseable articles only, while Section 17A gives to the Board of Revenue, with the sanction of the local Government, the power to declare by notification that the possession of any foreign exciseable article' is prohibited within districts and tracts specified in the notification. No doubt, it appears from the Deputy Magistrate's explanation that a notification has been duly published prohibiting the possession of any 'foreign exciseable article' without a license from the Collector in the District of Puri, but all the law provides with reference to such articles is that the person in possession thereof shall be liable to a fine (see Section 61A). There is nothing to indicate, as far as we can discover, that 'foreign exciseable articles' are meant to be a Sub-class of 'exciseable article;' and, indeed, we do not find that such articles are liable to seizure and confiscation as exciseable articles are under Section 75 of the Ace. It follows, therefore, that the Excise Officer had no authority to proceed under Section 40 of the Act. We may also refer to Section 82 of the Act, in which a distinction is drawn between an 'exciseable article' and a 'foreign exciseable article,' thus indicating that the Legislature did not mean 'foreign exciseable' articles to be a Sub-class of 'exciseable' articles. We also think that Section 99 of the Penal Code, and the authorities referred to by the Sessions Judge in his judgment, are not applicable to the facts and circumstances of the present case. The common object of the assembly was to resist the search of the house, which, as we have already said, the Excise Officer had no legal authority to make; and that being so, we are unable to say that such assembly was an 'unlawful assembly,' as defined in Section 141 of the Penal Code, and that when force was used the offence of resisting was committed. Similarly, we are of opinion that the conviction under Section 353 of the Penal Code cannot be supported, because the Special Excise Sub-Inspector, when assaulted, was not acting in lawful discharge of his duty. See In re Rakhmaji I.L.R. 9 Bom., 558. We observe that the Sessions Judge is of opinion that the Excise Officer was protected by Section 99 of the Penal Code; and he cites two cases Bhawoo Jiraji v. Mulji Dayal I.L.R. 12 Bom. 377 and Queen-Empress v. Dalip I.L.R. 18 All. 246 in support of this view. But the facts of those cases are essentially different from the facts of the present case, and we do not think that the law laid down therein is applicable here; or that Section 99 of the Penal Code can protect the Excise Officer, when his conduct was altogether illegal. For the above reasons we set aside the conviction and sentences.
4. We might, however, hold that the petitioners are guilty of the offence of ordinary assault punishable under Section 352 whoever assaults or uses criminal force to any person other wise then on grove and sudden provocation given by that person, shall be punished with imprisonment of either deseription for a term which may extend to three mouths, or with fine, which may extend to five hundred Rupees, or with both of the Penal Code, but we are not quite sure whether the resistance offered or the force used was not necessary to resist the Excise Officer in what he attempted to do, viz., to break open the door of the petitioner's house. But in any view of the matter, it seems to us that the incarceration, which the petitioners have already suffered under the sentence imposed by the Magistrate, is sufficient in the circumstances of the case, and that there need not therefore he any formal conviction for assault under Section 352.