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1985 DIGILAW 512 (MAD)

State by Public Prosecutor v. A. Subramaniam Chettiar

1985-12-16

BELLIE

body1985
ORDER This revision petition is directed against the judgment of the learned Sessions Judge, Madurai reversing the order of confiscation by the District Revenue Officer, Madurai. The State is the Revision Petitioner. 2. On 8.9.1981, at about 4.45 p.m., the Inspector of Police, Civil Supplies, C.I.D., Madurai, inspected the mill of A. Subramania Chettiar, the respondent herein, and found a shortage of 29.25 quintals of raw paddy accounts and excess of 17.81 quintal boiled rice and excess of 47.52 quintal of boiled paddy than the actual accounts. Therefore he seized the said quantities of the paddy and rice, and submitted a report to the Collector complaining that the respondent has contravened the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, and for confiscation of the said paddy and rice seized. On this report, the District Revenue Officer held an enquiry, and found the respondent to have committed an offence contravening the provisions of Cl.3(1) of the wholesale licence issued to him and Cl.16(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 and he ordered confiscation of the seized excess quantities of 17.81 quintals of boiled rice and 47.52 quintals of boiled paddy. 3. As against this order, the respondent preferred an appeal to the learned Sessions Judge, Madurai. Before him it was contended that the Revenue Divisional Officer, in his show cause notice as to why the seized articles should not be confiscated, has stated that the respondent has committed offences and this would show that even before the enquiry the Revenue Divisional Officer has come to a conclusion that the respondent had committed offences and this is wrong, and hence the enquiry is vitiated. It was further contended that the Inspector who seized the articles has not followed the procedure laid down in Sec. 100 of Crl.P.C., and hence the seizure is illegal. It was thus contended that the Inspector has not recorded the reasons to believe that the appellant has committed or is committing or is about to commit an offence, and hence for this reason also the entire proceedings of Inspector has vitiated. On these contentions it was argued that the order of confiscation must be held to be wrong and it must be set aside. 4. On these contentions it was argued that the order of confiscation must be held to be wrong and it must be set aside. 4. The learned Sessions Judge held that there was nothing improper in the Revenue Divisional Officer stating in his show cause notice that the respondent has committed offences, and there is no substance in the contention of the respondent that the Inspector has not satisfied the requirements of Sec. 100 of Code of Criminal Procedure, but however regarding the contention that the Inspector has not recorded his reasons to believe that the respondent had committed or was committing or was about to commit an offence before his inspection, the learned Sessions Judge found much force in this contention, and finding that the Inspector has not recorded the reasons as contended and therefore the entire proceedings were vitiated and for this reason he held the confiscation ordered is illegal, and hence he set aside the order of the Revenue Divisional Officer, and ordered return of the articles to the appellant or to pay the value thereof if they had been already sold. As against this order of the Sessions Judge the State has preferred this revision petition. 5. It is contended that the finding of the learned Sessions Judge that the Inspector has not recorded his reasons to believe that the respondent has committed or is committing or is about to commit an offence before his inspection, and this would vitiate the proceedings, is erroneous, and therefore his judgment setting aside the order of confiscation is wrong. I am of the view that this contention is quite correct and it must prevail. The Inspector has inspected the mill acting under the powers granted under Cl.25 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. This clause, as far as it is relevant, reads thus: “25. Powers of entry, seizure, search, etc.-(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, such officer, may, by himself or authorised any other officer to- (a) inspect any book, account or other document or any stock of paddy or rice to the possession or under the control of any persons; ……….. ……… (d) ….. ……… (d) ….. (e) Seize the stock of paddy or rice along with the packages, coverings or receptacles in which such paddy or rice is found or the animals, vehicles, vessels, boats or other conveyances used in carrying such paddy or rice and thereafter take or authorise the taking of all measures necessary for securing the production of the packaging, coverings, receptacles, animals, vehicles, boats or other conveyances so seized in a Court and for their safe custody pending such production; Provided that the Officer conducting the inspection or search shall give a receipt for what is seized immediately after the seizure is affected. (4)………….” This Cl.25 empowers the competent officer to inspect any book, account or other document or any stock of paddy or rice in the possession or order the control of any person, and to seize the articles in respect of which the contravention is committed, and this he can do if he has reason to believe that any contravention of the order has been committed or is being committed or is about to be committed. It is clear therefore that the competent officer can use the power under Cl.25 if he has reason to believe that any contravention of the order has been committed or is being committed or is about to be committed, and it is not at all stated anywhere that the officer must record the reasons for his so believing. Therefore, it is not necessary that officer should record the reasons to believe, and it is uncalled for. 6. However, the learned counsel for the respondent cites the Supreme Court decision in K.L. SUBHAYYA v. STATE OF KARNATAKA K.L. SUBHAYYA v. STATE OF KARNATAKA 1979 MLJ.(Crl.) 484: 1979 Crl.L.J. 651: A.I.R. 1979 S.C. 711: (1979)2 S.C.J. 29, and strongly relies on that decision in support of his contention that the Inspector should have recorded his reasons to believe that an offence has been committed or being committed or about to be committed before he inspected the will. In this decision, while considering Secs. In this decision, while considering Secs. 53 and 54 of the Mysore Excise Act, it has been held that the concerned Inspector who searched the car in that case had not made any record of any ground on the basis of which he had reason to believe that an offence under the Act was being committed before proceeding to search the car, and that the provisions of Sec. 54 of the Act had not at all been complied with. But Sec. 54 of the Mysore Excise Act is not similar to C1.25 of Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. Sec. 53 of the Mysore Excise Act empowers a Magistrate to issue a warrant for search of any place in which he has reason to believe that any of the offences described in that Section has been or is being, or is likely to be committed, and Sec. 54 is a special provision which enables the officer concerned to effect search even without warrant in urgent cases, but the section requires that before doing so he must record the grounds of his belief. Thus it is required in Sec. 54 itself that the officer must record the grounds of his belief before he makes the search. That is not the case in Cl.25 of Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. Therefore, the learned counsel for the respondent cannot get any assistance from the said Supreme Court decision. The learned counsel also relies on the decision in APPAVO GOUNDER v. COLLECTOR OF SOUTH ARCOT DISTRICT APPAVO GOUNDER v. COLLECTOR OF SOUTH ARCOT DISTRICT 1981 MLJ.(Crl.) 563, in which a single Judge of this Court deriving support from the above decision of the Supreme Court has held that the failure on the part of the competent officer who made the search and seized the articles to record his reasons for believing that an offence has been committed under the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 vitiates the seizure and confiscation. As against this, the learned Public Prosecutor cites an unreported judgment of this Court in STATE BY THE PUBLIC PROSECUTOR v. P. VIJAYAKUMAR AND ANOTHER, Crl.R.C.No.438 of 1982, dt. As against this, the learned Public Prosecutor cites an unreported judgment of this Court in STATE BY THE PUBLIC PROSECUTOR v. P. VIJAYAKUMAR AND ANOTHER, Crl.R.C.No.438 of 1982, dt. 19.12.1984, which also has been rendered by a single Judge of this Court wherein the learned Judge has referred to the aforesaid judgment of the Supreme Court and also the aforesaid judgment of the single Judge of this Court and another judgment of a single Judge of this Court in M. PERUMAL v. STATE M. PERUMAL v. STATE 1980 T.L.N.J. 171, and has held that the absence of recording would not affect the validity of the proceedings. For all these reasons, I am of clear view that the competent officer need not record the reasons for his belief. Therefore, the inspection and seizure is perfectly in order. 7. It is next rather half-heartedly contended by the learned counsel for the respondent that the competent officer should have complied with the provisions of Sec. 100 of the Crl.P.C., and having failed to do so, the inspection and seizure must be held to be illegal. In this connection, he draws my attention to Sub-cl.(3) of Cl.25 of the Tamil Nadu Paddy and Rice Regulation of Trade Order, 1974. But a reading of Sub-cl.(3) would show that this sub-clause is subject to the provisions of Sub-cl.(3) of C1.25. Apart from stating that the reasons for his belief has not been stated by the competent officer, no other thing has been pointed out as irregularity committed by him. 8. In the decision of this Court in STATE BY THE PUBLIC PROSECUTOR v. P. VIJAYAKUMAR AND ANOTHER, Crl.R.C. No.438 of 1982, dt. 19.12.1984, the learned Judge after holding that recording of the reasons to believe need not be done, has further held, relying on the decision in BAI RADHA v. STATE OF GUJARAT BAI RADHA v. STATE OF GUJARAT 1970 MLJ.(Crl.) 414: A.I.R. 1970 S.C. 1396: (1969)2 S.C.R. 799 , that even assuming that recording of the reasons for the belief is necessary, if no prejudice on account of that is shown, the proceedings cannot be held to be illegal. I am in agreement with it. 9. In the result, therefore the revision is allowed and the judgment of the learned Sessions Judge is set aside and the order of the District Revenue Officer is restored. R.S. ----- Revision allowed.