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1981 DIGILAW 1070 (ALL)

Brijendra Nath Agarwal v. Pharmed Private Limited

1981-11-30

M.WAHAJUDDIN

body1981
JUDGMENT : M. Wahajuddin, J. The applicant is being prosecuted on a private complaint of the opposite party u/s 409 Code of Criminal Procedure filed on 25-6-1979. It would appear that in pursuance of a search and seizure warrant issued by the Magistrate concerned medicines, account books, vouchers etc. have been seized from the premises of Brijendra and Brijendra. The order is Annexure III and the search warrant, also directing seizure is Annexure IV. The order was passed on an application preferred by the opposite party, Annexure I, supported by an affidavit, Annexure II. In the application for search and seizure, it was stated that the belongings are in possession of the accused and prayer for his search and seizure from his place was made. The warrant issued by the Magistrate is, however, not for any personal search or search of the premises of the accused person, but it purports to be a warrant for general search. 2. The first ground urged is that there is a violation of Article 20 of the Constitution as any accused person cannot be called upon to furnish any incriminating evidence against him. Reliance has been placed upon the case of State of Gujarat v. Shyam Lal Mohan Lal Choksi AIR 1965 SC 1251 wherein it was held that no search warrant could be issued to search for documents known to be in possession of the accused, but a general search or inspection can still be ordered. The learned Counsel for the opposite side relied upon the case of V.S. Kuttan Pillai Vs. Ramakrishnan and Another, AIR 1980 SC 185 . In that case the following observations have been made: It was however, urged that Section 93(1)(c) must be read in the context of section 93(1)(b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by Section 93(1)(c) will have to be ruled out because in such a situation section 93(1)(a) alone would be attracted. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document of thing is in possession of any particular person. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document of thing is in possession of any particular person. Under Clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. One cannot, therefore, cut down the power of the Court u/s 93(1)(c) by importing into it some of the requirements of Section 93(1)(b). No canon of construction would permit such an erosion of power of the Court to issue a general search warrant. It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation, inquiry, trial or other proceedings under the Code. The High Court accordingly sustained the general search warrant in this case u/s 93(1)(c). 3. I have considered the implication. It may be observed that in paragraph Nos. 10 and 11, read together, it was observed that the court was proceeding on a certain assumption in view of the decision in Shyamlal Mohanlal's case though there are conflicting observations in different pronouncements and a search u/s 93(1) Code of Criminal Procedure would not be issued where the summons could not be issued to a person accused of an offence, calling upon him to produce documents or things considered necessary. It would thus appear that in no way there has been any dissent from the earlier pronouncements so far as this particular aspect is concerned and the aforesaid pronouncement lays down that while otherwise, general search warrant can be issued as contemplated u/s 93(1)(c) Code of Criminal Procedure. It cannot be issued in case covered u/s 93(1)(a) Code of Criminal Procedure. It cannot be issued in case covered u/s 93(1)(a) Code of Criminal Procedure. In the present case, the application, Annexure I, itself would indicate that the case was covered u/s 93(1)(a) Code of Criminal Procedure. 4. In the circumstances, it would appear that the order, as such, for search and seizure was not in accordance with law. 5. But the seizure has already been made and the Court has to consider whether that seizure can be undone. The learned Counsel for the applicant has relied upon the case reported in Crl. AIR 1979 (SC) 125. In that case Excise Inspector searched the car without warrant. Provisions of Section 54 of the Mysore Excise Act were not complied with and it was held that the conviction of the Appellant cannot be sustained and he should be acquitted. The facts of that case are totally distinguishable. They did not relate to any search or seizure under the provisions of Code of Criminal Procedure. The matter related to a special Act, namely Excise Act which contains certain provisions and those provisions were contravened. The learned Counsel for the opposite-side has cited the case of State of Maharashtra Vs. Natwarlal Damodardas Soni, AIR 1980 SC 593 . It was observed that assuming that the search was illegal, it will not affect the validity of seizure and further investigation by the Customs Authorities or the validity of the trial. In this ruling, a number of earlier pronouncements concerning the matter of search and seizure were considered. In the case of Radha Krishna v. State of U.P. 1963 Supp 1 SCR 408 it was held that assuming that the search was illegal, the seizure of the article is not vitiated. Contravention of provisions of Section 103 and 165 Code of Criminal Procedure were pleaded in that case. Similar view was taken in the case of Shyam Lal Sharma, etc. Vs. State of Madhya Pradesh, AIR 1972 SC 886 and a number of other Supreme Court pronouncements cited in the aforesaid case. The principles laid down in these pronouncements are that even if the search and seizure is in contravention of any provisions of the Code of Criminal Procedure the subsequent steps in the investigation on the proceedings would not be vitiated or affected in any manner. The principles laid down in these pronouncements are that even if the search and seizure is in contravention of any provisions of the Code of Criminal Procedure the subsequent steps in the investigation on the proceedings would not be vitiated or affected in any manner. When that is the position, the applicant cannot claim the restoration of the seized properties to him when, as per complaint allegations, the complainant claims to be owner thereof and the case is u/s 409 Code of Criminal Procedure. The matter involving question of fact would, of course, be examined by the Magistrate and not at this stage here. I am purposely refraining from exercising any opinion on such matter so that in any way the Magistrate may not be prejudiced. 6. I find that earlier also an application u/s 482 Code of Criminal Procedure was preferred and has been rejected. While I agree with the submissions of the learned Counsel for the applicant that the principles of resjudicata are inapplicable to criminal proceedings, as such. 1 do feel when inherent powers of the court arc invoked to undo any abuse of the process of law, it is always desirable that all the grounds should be taken and the matter should not be agitated again and again by a number of applications u/s 482 Code of Criminal Procedure taking one ground after another in succession, because if that is done, it may itself amount to abusing the process of law. 7. I may also observe that for exercising the inherent powers, there may not be a bar that any revision could be filed or has not been filed or if filed, it has been rejected and in suitable places such powers can also be exercised. 8. In the result, the application is dismissed. The stay order is vacated and the Magistrate may expedite the disposal of this case.