State of Rajasthan vs Rehman

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 14 October, 1959

Coram: K. Subba Rao, P.B. Gajendragadkar

In the matter titled State of Rajasthan versus Rehman, decided on 14 October 1959 by the Supreme Court of India, a bench comprising Justice K. Subba Rao and Justice P. B. Gajendragadkar heard an appeal that had been granted a certificate under article 134(1)(c) of the Constitution. The appeal challenged a judgment of the High Court of Judicature for the State of Rajasthan dated 20 September 1957, which in turn had confirmed the order of the Munsif-Magistrate, Hinduan, that had acquitted the accused of the charge framed under section 353 of the Indian Penal Code. The factual backdrop of the dispute was confined to a limited set of events. The Deputy Superintendent of Central Excise, whose headquarters were situated at Bharatpur, received information indicating that a certain Sulled and his son Rehman, the respondent, had been cultivating tobacco without paying the excise duty that was legally required. Acting on this information, on 9 September 1953 at approximately two o’clock in the afternoon, the Deputy Superintendent proceeded to the residence of Rehman accompanied by an Inspector of Central Excise, a sepoy, a chowkidar and two motbirs, with the purpose of conducting a search of the premises to determine whether tobacco was being stored there. When the officials announced their intention to search, the respondent together with an individual named Dhamman allegedly obstructed the officials, an incident that caused the Deputy Superintendent to fall and sustain injuries. Consequently, both the respondent and Dhamman were prosecuted. The Munsif-Magistrate, Hinduan, discharged Dhamman but found the respondent guilty of the offence under section 353 of the Indian Penal Code, imposing a sentence of three months’ rigorous imprisonment. Upon appeal, the Additional Sessions Judge examined the material then before the court and concluded that the search had not been carried out in conformity with section 165 of the Criminal Procedure Code, thereby ordering a remand for fresh inquiry. When the matter returned to the Munsif-Magistrate, he observed that the Deputy Superintendent had conducted the search without recording the reasons as mandated by section 165 of the Criminal Procedure Code and determined that the respondent’s obstruction of an illegal search did not amount to a criminal offence; on that basis the respondent was acquitted. The High Court affirmed the reasoning of the Munsif-Magistrate and confirmed the order of acquittal. Dissatisfied with this outcome, the State of Rajasthan filed the present appeal, questioning the correctness of the High Court’s decision. Counsel for the State advanced two principal contentions. First, it was urged that the Central Excise and Salt Act of 1944, together with the Rules made thereunder, and the Criminal Procedure Code each distinguish between the authority to conduct a search and the prescribed manner of conducting it, thereby linking a specific power with a corresponding procedural requirement. In the present case, the Deputy Superintendent of Central Excise, it was argued, exercised his authority to search solely for the purpose of gathering information concerning the quantity of tobacco stored in the respondent’s house for the assessment of excise duty, and not for the purpose of initiating a criminal investigation aimed at prosecuting the respondent.

The Court observed that the respondent was required to follow the mode of search prescribed under section 103 of the Code, which applies generally to all searches, rather than the procedure laid down in section 165 of the Code, which is intended for searches conducted by a police officer in the investigation of an offence. The Court further explained that, assuming section 165 were to apply, that provision merely confers a power or jurisdiction on a police officer to conduct a search and sets out the procedural steps to be observed. Because the requirement to record reasons is linked to the question of jurisdiction, the excise officer, whose authority to search already stemmed from rule 201 of the Central Excise Rules, needed to comply only with the procedural component of section 165 of the Code.

The Court noted that the counsel for the respondent had not appeared before it. To consider the arguments raised by the counsel for the State, the Court found it necessary at this stage to refer to the relevant provisions of the Central Excise and Salt Act, the Rules made thereunder, and the Criminal Procedure Code. Under section 18 of the Act, every search effected under the Act or its Rules must be carried out in accordance with the provisions of the Code that relate to searches. Section 37 empowers the Central Government to make rules for implementing the purposes of the Act, including rules that authorize and regulate the inspection or search of any place when such inspection or search is essential for the proper levy and collection of duties imposed by the Act. By exercising the power conferred by section 37, the Central Government framed rule 201, which authorises any officer of any department under its control to enter and search at any time, day or night, any land, building, enclosed place, premises, vessel, conveyance or other location where he has reason to believe that excisable goods are being processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or the Rules. The Act and the Rules contain specific provisions regulating the production, manufacture and processing of excisable goods, prescribe the machinery and procedure for imposing and collecting duties on such goods, and provide a special procedure for unmanufactured tobacco, as found in sections 3, 6 and 8 of the Act and Chapter IV of the Rules. Section 9 imposes penalties for contravention of those provisions, including offences relating to the production of excisable goods and the supply of information concerning them. Rule 210 provides that a breach of the Rules, where no other penalty is provided, is punishable with a fine of up to one thousand rupees and the confiscation of the goods involved. From these provisions, the Court inferred that the officer empowered by the Central Government may conduct a search only when he has reason to believe that a contravention of the Act or the Rules has occurred, and that such a search is undertaken for the purpose of investigating an offence.

In this case the Court observed that an officer empowered by the Central Government may conduct a search only when he has a reasonable belief that excisable goods are being processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or the Rules. The purpose of such a search, therefore, is solely to determine whether a breach of the statutory provisions has occurred, and the Court noted that such a breach constitutes an offence under the Act. In other words, Rule 201 authorises the designated officer to carry out a search strictly for the purpose of investigating an offence. The Court then examined the relevant provisions of the Criminal Procedure Code to determine which of its search provisions correspond to the power granted to the Deputy Superintendent under Rule 201. The Code contains four distinct groups of sections dealing with searches. The first group comprises sections 47, 48, 51 and 52 of Chapter V, which relate to the arrest, escape and recapture of persons. Section 47 governs the search of any place entered by persons who are sought to be arrested; section 48 regulates the procedure where entry is not possible; and sections 51 and 52 deal respectively with the search of arrested persons. The second group consists of sections 100, 101, 102 and 103 of Chapter VII. Section 100 addresses the search for persons who are wrongfully confined, while the remaining sections provide general rules on search warrants, the duties of persons in charge of closed places and the requisition of persons to witness searches. The third group is represented by section 153, which falls under Chapter XIII and deals with preventive police action. Under this provision a police officer may, without a warrant, inspect or search for any weights, measures or weighing instruments kept within his jurisdiction if he has reason to believe that such instruments are false. The fourth group appears in Chapter XIV and concerns searches conducted by a police officer during the investigation of a cognisable offence. The power of search in this chapter is incidental to the investigation and is exercised under the conditions laid down in section 165. Section 165 imposes four requirements: first, the police officer must have reasonable grounds to believe that any item necessary for the investigation cannot, in his opinion, be obtained by any means other than a search and that the search must be undertaken without undue delay; second, the officer must set out in writing the reasons for his belief and, as far as possible, specify the items to be searched for; third, the officer must, if practicable, conduct the search in person; and fourth, if personal conduct of the search is not practicable, the officer must record the reasons for delegating the task, authorise a subordinate officer to carry out the search, and in writing specify the place to be searched and, as far as possible, the items to be sought.

The officer was required to write the reasons for not making the search personally and to authorize a subordinate officer to carry out the search, after specifying in writing the place to be searched and, as far as possible, the specific thing for which the search was to be made. Because a search is an act that is extremely discretionary in nature, the legislature imposed strict statutory conditions on the exercise of this power. A comparison of the provisions under section 165 of the Code with rule 201 of the Rules shows that a search conducted by a police officer during the investigation of a cognizable offence is essentially comparable to a search undertaken by an authorized officer under rule 201, since in both situations the purpose of the search is to determine whether a person has contravened the provisions of the Act or the Rules, which constitutes an offence. There is no justification for imposing conditions on a police search under section 165 of the Code while exempting a search carried out by the excise authorities under the Rules from similar safeguards. The legislature, by stating in section 18 of the Act that 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 authorized under both the Act and the Rules. Accordingly, the Court held that the provisions of section 165 of the Code must be followed in the matter of searches made under section 201 of the Rules. Regarding the second contention, the Court found no merit. While the recording of reasons is a necessary pre-condition for making a search, it does not confer jurisdiction on the officer to conduct the search; the jurisdiction or power to search is conferred by the statute itself and does not arise from the record of reasons. Furthermore, section 18 of the Act expressly provides that searches shall be carried out in accordance with the Code of Criminal Procedure. Section 165 of the Code lays down the various steps to be followed in making a search, and the recording of reasons is an essential step in that process. To ignore this step would be to disregard a material part of the statutory scheme; a search conducted in such a manner could not be said to be in accordance with the Code and would constitute a contravention of its provisions. For these reasons, the Court held that the search carried out by the Deputy Superintendent in the present case, which was in violation of the provisions of section 165 of the Code, was illegal. Even so, counsel attempted

The counsel for the respondent argued that even though the Deputy Superintendent had failed to record the reasons for the search, that omission amounted only to an irregularity and did not give the respondent any right to stop the officer from carrying out the search. The court observed that this particular contention had never been raised at any earlier stage of the proceedings. Because it was a fresh argument presented for the first time before this Court, the court held that it was not appropriate to permit the respondent to rely on it at this late juncture. Consequently, the court affirmed the finding of the High Court that the search had been unlawful and that the appeal did not succeed. In accordance with the High Court’s conclusion, the court dismissed the appeal. The final order recorded by the court was that the appeal was dismissed.