State by the Public Prosecutor v. P. Vijayakumar — 1984 DIGILAW 545 (MAD)

Judgment This is a revision petition by the State against an order of the Sessions Court, Salem reversing the order of confiscation passed by the Collector of Salem. 2. The facts are summarily as follows: On 25th June, 1981, the Taluk Supply Officer, Salem, inspected the premises of the respondents and found them doing business in pulses without a valid licence as required by the provisions of the Tamil Nadu Pulses (Regulation of Trade) Order, 1978. They were also found to be in possession of unaccounted stock of 6 bags of toor dhall and 10 bags of black-gram dhall. The Taluk Supply Officer seized 16 bags of pulses for contravention of clause 3(1) of the Tamil Nadu Pulses (Regulation of Trade) Order, 1978 and reported to the Collector for confiscation. The Collector, after following the procedure prescribed by law ordered confiscation of the 16 bags. Aggrieved by that order, an appeal was preferred before the Sessions Court, in which it was contended that there was nothing on record to show that for the purpose of the surprise inspection, before entering into the premises of the respondent, the Taluk Supply Officer had any reason to believe that a contravention of the provisions of the Order has been committed. It was argued that on account of the absence of such reason, the search, the subsequent seizure and the order of confiscation were illegal and liable to be set aside. The Appellate Authority accepted in full the contention of the trader and set aside the order of the Collector and directed that the entire stock of pulses seized be returned to the trader. It is against that order dated 23rd March, 1982 that the present revision is filed. 3. The case of the State-Revision Petitioner is that there is no necessity of recording the reason of the competent authority before entering the premises, searching and seizing. The learned Counsel for the respondents/traders would contend that the reason to believe that the contravention has been committed is essential, that it should be on record, that otherwise the whole proceedings would become vitiated and illegal. The learned Counsel for the traders would place much reliance on a Judgment of the Supreme Court in K.L. Subbhayya v. State of Karnataka, (1979) 2 S.C.J. 29: (1979) L.W. (Crl.) 213: (1979) M.L.J. (Crl.) 484: A.I.R. 1979 S.C. 711. The learned Counsel for the traders would place much reliance on a Judgment of the Supreme Court in K.L. Subbhayya v. State of Karnataka, (1979) 2 S.C.J. 29: (1979) L.W. (Crl.) 213: (1979) M.L.J. (Crl.) 484: A.I.R. 1979 S.C. 711. In that case, under the Mysore Excise Act, the Inspector, who had searched the car of the accused had not made any record of any ground on the basis of which he had a reasonable believe that an offence under the Act was being committed before proceeding to the search of the car. It was held that sections 53 and 54 of the Act contained valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment and that if those provisions were not complied with, the entire search would be without jurisdiction and as a logical corollary the conviction under section 34 of the said Act would be vitiated. But, this ruling of the Supreme Court cannot have any application to the facts of the present case for the simple reason that under section 54 of the Mysore Act it is stipulated that a search warrant should be obtained when the concerned officer has reason to believe that an offence under the Act has been committed, and that if a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief enter and search any place. As per the law applicable to the case dealt with by the Supreme Court, the officer can normally search only after obtaining a search warrant or after recording the grounds of his belief. As far as the search under the Order presently infringed is concerned, there is no requirement of a search warrant nor is it necessary to record the grounds for the belief. It is, therefore, very clear that it would be improper to apply the ruling of the case dealt with by the Supreme Court to the facts of the present case. 4. It is, therefore, very clear that it would be improper to apply the ruling of the case dealt with by the Supreme Court to the facts of the present case. 4. The learned Counsel for the respondents placed also before me two decisions-one by a single Judge of this Court in M. Perumal v. State, (1980) T.L.N.J. 171: (1980) L.W. (Crl.) 222, who held, while applying the ruling, referred to above, that when there is nothing on record to show that before entering the business premises, the Sub-Inspector of Police, Food Cell, C.I.D., had reason to believe that there was a contravention, the search was illegal and consequently the order of confiscation is not valid. The other decision placed before me by the learned Counsel for the respondent is a Bench decision of the Andhra Pradesh High Court in P. Ramachandra v. Government of India, A.I.R. 1979 A.P. 28. While dealing with the Andhra Pradesh Foodgrains Dealers Licensing Order, 1969, clause 11 which contains provisions akin to those of clause 16 of the Order under which the present seizure was effected, it held as follows: “Clause 11(b) does not admit of any doubt that at the time of entering or searching the premises, there must be reasonable belief that a contravention of the provisions of the Order has been or is likely to be committed. That ”reason to believe“ is a condition precedent to vest any jurisdiction in the officers either to enter the premises or to make any search; In the absence of such reasonable belief, the entry and the consequent search becomes vitiated. The mere fact that subsequently the officers taking search discovered some discrepancy in the stock on hand and the position of stock as entered on the notice board, cannot make good the reasonable belief which an officer is bound to have initially before he makes an entry. Clause (h) also makes such belief necessary before entering the premises.” 5. On his side the learned Public Prosecutor relied on a Bench decision of the Patna High Court in Narendra Kumar v. State of Bihar, (1977) Crl.L.J. 1755, which, while dealing with Bihar Licensing Order, clause (9) of which provides for search and seizure, decided as follows: “Clause 9 of the Order provides for search and seizure. On his side the learned Public Prosecutor relied on a Bench decision of the Patna High Court in Narendra Kumar v. State of Bihar, (1977) Crl.L.J. 1755, which, while dealing with Bihar Licensing Order, clause (9) of which provides for search and seizure, decided as follows: “Clause 9 of the Order provides for search and seizure. It has been pointed out by learned Counsel appearing on behalf of the petitioner that there is nothing on the record to indicate that the officer conducting the search and seizure had reason to believe that there was any contravention of the provisions of this Order or of the conditions of any licence issued thereunder. True it is that the Officer conducting the search and making the seizure has not recorded that he had reasons for such a belief; but on the facts of the instant case when we find that the allegation that correct accounts were not maintained by the petitioner, cannot be said to be entirely baseless, the search and seizure cannot be held to be illegal on the ground that the authority concerned has not put in writing that he had reasons for such a belief.” The second decision relied on by the learned Public Prosecutor is by a single Judge of this Court in Soorianarayanan, In re, (1983) L.W. (Crl.) 67, who, while dealing with the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 which contains a provision similar to that of clause 16 of the present Order, held as follows: “It is enough if the competent officer had reason to believe so. It may be that the competent officer on the basis of the information which he might have received, effects the seizure and it may be that such information could not be disclosed to the affected party. In my view, unless some prejudice is caused to the accused, failure to state in his report that the competent officer had reason to believe that a contravention of the Order has been committed or is being committed or is about to be committed, would not vitiate either the seizure of the proceedings. No doubt, the report of the police officer does not mention that he had reason to believe that a contravention of the Order has been committed, or is being committed or is about to be committed. No doubt, the report of the police officer does not mention that he had reason to believe that a contravention of the Order has been committed, or is being committed or is about to be committed. But, that by itself will not affect the validity of the seizure, I am therefore, of the view that the order of confiscation is correct.” Each party has got in support of his stand a decision of a single Judge of this Court and a Bench decision of another High Court. In order to decide this point it is necessary to go back to the relevant provisions of the Act and the Order. The Essential Commodities Act under section 3(2)(j) provides that an order may be made providing among other things for the entering and searching of premises and for seizure by a person authorised to that effect. In pursuance of that provision the Pulses Trade Regulation Order provides as follows: “16(1). If any competent officer has reason to believe that any contravention of this Order has been committed or is being committed or is about to be committed, he may............. (d) enter and search any premises or place; (e) seize the stock of pulses in respect of which the competent officer has reason to believe that any provisions of this Order has been, is being or about to be contravened.....”. It is to be noticed that the competent officer is vested with full power of entry, search and seizure, and that such power is not subject to such restrictions as contemplated under section 165, Criminal Procedure Code, as per which the police officer, if he wants to effect search without warrant, can do so only after recording in writing the grounds of his belief and should forthwith send copy of such record to the Magistrate with the right for the parties to get a copy from the Magistrate. What is required under the Order is only the reasonable belief of the competent officer and there is no obligation for him to disclose the reasons for his belief in a confiscation proceeding. Those reasons would be relevant when a suit or any other legal proceeding is started against him. When such a proceeding is started, it has to be ascertained whether the Officer acted in good faith. Those reasons would be relevant when a suit or any other legal proceeding is started against him. When such a proceeding is started, it has to be ascertained whether the Officer acted in good faith. In fact, as per section 15 of the Essential Commodities Act, no such proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made under section 3. If the officer proves that he acted in good faith, the proceedings will not lie. At that stage, the officer would have to disclose the reasons which prompted him to enter the premises in order to show that he did not do so for frivolous reason or for the purpose of harassment. 30, it is clear from the contract between the provisions of clause 16 of the Order and those of section 165, Criminal Procedure Code, that the reason for the belief of the concerned Officer need not be disclosed and are therefore, immaterial in the confiscation proceedings. 6. Secondly, leaving apart the question of recording the reasons prior to entry and search, even assuming that such a record is necessary for the purpose of the search, the absence of such a record would not make the search itself illegal. It would amount only to an irregularity. Such irregularity will not vitiate the proceedings. This point has been made clear by the Supreme Court in Bai Radha v. State of Gujarat, (1969) 2 S.C.R. 799 : (1970) 1 S.C.J. 929: (1970) M.L.J. (Crl.) 414: A.I.R. 1970 S.C. 1396. In that case, even in respect of a search under section 165, Criminal Procedure Code, where the record for reasons is statutorily prescribed, the Court stated as follows: “In this case, however, it was observed that the recording of reasons under section 165 did not confer on the officer jurisdiction to make search though it is a necessary condition for doing so. Jurisdiction or power to make a search was conferred by the statute and not derived from the recording of reasons.” Therefore, it is clear that the absence of recording of reasons would not affect the validity of the proceeding not vitiate it. The reason given by the Appellate Court in reversing the order of the Collector is not acceptable. 7. Jurisdiction or power to make a search was conferred by the statute and not derived from the recording of reasons.” Therefore, it is clear that the absence of recording of reasons would not affect the validity of the proceeding not vitiate it. The reason given by the Appellate Court in reversing the order of the Collector is not acceptable. 7. Further, in the present case, the dealer had applied for licence and that application was under consideration. The report by the Taluk Supply Officer would show that he had drawn the attention of the dealer to the District Supply Officer’s reference in which it was specifically informed that he should not do business till he received licence. Therefore, the report would show that the dealer was showing signs of impatience to start his business and that the authorities had reason to suspect that there might be violations. I therefore find that the order of the Collector is perfectly in order. 8. In the result, the revision petition is allowed, the order of the appellate authority is set aside and the order of the Collector is restored.