A. A. DAVE, J. ( 1 ) (HIS Lordship after considering the facts of the case held that it was clearly established that the accused evaded payment of any duty payable under the Central Excise Act and both the accused would therefore be guilty of an offence under sec. 9 (6) of Act. His Lordship further observed:) ( 2 ) MR. Barot however urged that under rule 201 of the Central Excise Rules 1944 only an officer specially empowered by the Central Government may enter and search at any time any premises if he has reason to believe that excisable goods in contravention of the provisions of the Act or rules were stored. In the instant case he urged that Mr. Mure has not stated in his evidence before the court nor is there any evidence led by the prosecution to show that Mr. Mure was specially empowered by the Central Government and therefore the search carried out by Mr. Mure was invalid. He also referred to sec. 18 of the Act to show that 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 relating respectively to searches and arrests made under that Code. Mr. Barot therefore urged that Mr. Mure was required to carry out the search as provided in sec. 165 of the Code of Criminal Procedure In the instant case according to Mr. Barot Mr. Mure had not before proceeding to search the premises recorded any writing containing grounds of his belief that the thing for which the search is to be made is in the place within the limits of such station. Mr. Barot therefore urged that when the search was carried out in contravention of the provisions of sec. 165 of the said Code and is a search carried out by an officer who was not authorised by the Central Government to do so all the proceedings made that officer concerned would be illegal and cannot be treated as dence in court. He therefore urged that even if some tobacco was und stored in the godown searched by Mr. Mure that fact by itself cannot be used against the accused in order to bring home the charge against him under sec. 9 of the Act. He therefore urged that even if some tobacco was und stored in the godown searched by Mr. Mure that fact by itself cannot be used against the accused in order to bring home the charge against him under sec. 9 of the Act. He referred to the case of State of Rajasthan v. Rehman A. I. R 1960 Supreme court 210 wherein it was observed:the legislature by stating in sec. 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 authorized under the Act and the rules. Therefore the provisions of sec. 165 of the Code must be followed in the matter of searches under Rule 201 of the rules. The recording of reasons under sec. 165 does not confer on the officer jurisdiction to make a search though it is a necessary condition for making a search. Sec. 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that can be ignored it cannot be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure; it would be a search made in contravention of the provisions of the Code. WITH respect I am in entire agreement with the principle enunciated in the above ruling. But in the instant case merely because Mr. Mure in his evidence has not stated that he was authorised by the Central Government to carry out the search there is nothing to show that in fact he had no such authority. His authority was not challenged by the accused in his cross examination or at any time at the trial. Normally therefore it could be presumed that the official act was done properly. However that apart even assuming for the sake of argument that the search carried out by Mr. Mure was not a search by an officer authorised by the Central Government and that the search was carried out in contravention of the provisions of sec. Normally therefore it could be presumed that the official act was done properly. However that apart even assuming for the sake of argument that the search carried out by Mr. Mure was not a search by an officer authorised by the Central Government and that the search was carried out in contravention of the provisions of sec. 165 of the Code of Criminal Procedure that itself could not vitiate the seizure of the articles in the search. The search may be illegal. If the search is carried out by an officer who was not competent to do so it would be open to the other side to oppose the search and no offence would be committed by a person opposing the search if the search was carried out in contravention of the provisions of sec. 165 of the Code or rule 201 of the Rules. But the fact that 260 bags of contraband tobacco were seized from the premises when the same were searched could not be ignored merely because the search was illegal or irregular. Seizure of the goods does not become vitiated. I am supported in my view by the case of Radha Kishan v. State of Uttar Pradesh A. I. R. 1963 Supreme Court 822 wherein it was observedit may be that where the provisions of secs. 103 and 165 Criminal P. C. are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequences ensues and the seizure of the articles is not vitiated. Where the High court in an appeal from acquittal has chosen to accept the evidence of the prosecution with regard to the fact of seizure the being a question to be decided only by the court of fact the Supreme court in appeal under article 136 of the Constitution would not reexamine the evidence satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court. IT will thus be clear that even if the search is considered to be illegal c both the counts that would not in any way vitiate the fact of the seizure of the articles under the search. IT will thus be clear that even if the search is considered to be illegal c both the counts that would not in any way vitiate the fact of the seizure of the articles under the search. It was not the case of the accused that these goods were not recovered from the premises raided by Mr. Mure on that day. It was not the case of the accused that any duty was paid on these goods. On the contrary as observed earlier both the accused had approached the deputy collector of the Central Excise Ahmedabad and had requested to return the goods. The deputy collector had passed an adjudication order imposing fine of Rs. 2500. 00 and penalty of Rs. 750. 00 which were paid by both the accused and thereafter the goods were released by the department. Thus the conduct of the accused in paying the fine and penalty clearly indicates that the accused accepted the departments stand that no duty was paid on the tobacco seized. Thus merely because the search carried out by Mr. Mure may be in contravention of the provisions of sec. 165 of the Criminal Procedure Code or rule 201 of the Rules made under the Central Excise Act one cannot get over the fact that at the time of the raid 260 bags of tobacco were found stored in the godown for which no duty was paid. The accused have admitted that they were the owners of the said good. On that basis they bad paid penalty and fine and goods were ordered to be released to them. It is not therefore open to the accused to urge that merely because the search was illegal the evidence regarding the seizure of the goods was inadmissible. The same view has been taken by the Kerala High Court in the case of United Oil Mills v. Collector of Customs and Central Excise Cochin A. I. R. 1963 Kerala 241 wherein it was observed that:. . . THE mere circumstance that there was an infirmity or illegality in the matter of non-Compliance with the provisions of sec. 165 of the Code of Criminal Procedure would 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. . . THE mere circumstance that there was an infirmity or illegality in the matter of non-Compliance with the provisions of sec. 165 of the Code of Criminal Procedure would 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. IN that case also on the day of the search the oil businessman A made statement admitting the fact that the tins of oils were illicitly removed by him from his oil Mills without payment of excise duty and without gate pass and after about fortnight a show cause notice was issued to him for action under Rr. 9 and 52a of Central Excise Rules. It was contended by the accused that such a statement could not be used against him and invoked the constitutional right of testimonial compulsion guaranteed under article 20 (3) of the Constitution. Negativing that contention it was held that there had been no accusation much less a formal accusation as against A on the date of search. The accusation if any must be considered to have been made on the date of issue of show cause notice. Hence the said statement on date of search was not inadmissible. There was therefore no question of violation of Art. 20 (3) of the Constitution. ( 3 ) IN the instant case also accused No. 2 on the date of the search in his statement recorded by Mr. Mure had admitted that he had taken the premises on rent and had stored tobacco for which he had not paid any duty. He admitted the ownership of the said tobacco. Thereafter application ex. 18 signed by both the accused was sent to the Central Excise department by registered post wherein both the accused admitted the ownership of the said tobacco. Thereafter at their instance an inquiry was made and ultimately after hearing them the order of adjudication was passed by the deputy collector Central Excise Ahmedabad and pursuant to that order both the accused had paid the penalty and finein my opinion therefore this is a clear case where the prosecution had established beyond reasonable doubt that 260 bags of tobacco were seized from the godown rented to accused No. 2 by Naranbhai Raval and that both the accused were the owners thereof. It is also established that no duty was paid for this tobacco. In view of this state of affairs the learned Magistrate was clearly in error in acquitting the accused. In my opinion an offence under sec. 9 (b) of the Central Excise and Salt Act 1944 is clearly established. ( 4 ) IN the result the appeal succeeds. The order of acquittal passed by the learned Judicial Magistrate First class Sidhpur acquitting the accused is hereby set aside and both the accused are found guilty of the offence punishable under sec. 9 (b3 of the Central Excise and Salt Act 1944 and sentenced to pay a fine of Rs. 500. 00 each in default R. I. for three months. .