Research › Browse › Judgment

Kerala High Court · body

1987 DIGILAW 267 (KER)

KOYAKUTTY v. STATE OF KERALA

1987-06-29

K.T.THOMAS

body1987
Judgment :- 1. A bullock cart carrying 592 coconut husks was proceeding along the National Highway (Alleppey-Quilon) on the First day of February, 1983. This was noticed by PW1, an Inspector appointed under the Coconut Huska Control Order, 1973 (for short 'the Order'). He stopped the cart near the Coconut Research Centre, Krishnapuram and questioned the petitioner who was riding the cart. It was revealed during such questioning that the petitioner was transporting coconut husks for one Aliyarkunju, and that no permit was issued to transport the husks as per Clause.9 of the Order. PW1, thereupon seized the contraband load under a mahazar (Ext.Pl) and reported the matter to the local police station. The bullock cart, the coconut husks and the petitioner were produced before the police station. A crime case was registered on the basis of the report and after investigation, the case was charge sheeted, against the petitioner and the said Aliyarkunju. The Special Court (for trial of offences under the Essential Commodities Act), Trichur before which the case was tried found the petitioner guilty of the offence under S.7(1)(a) of the Essential Commodities Act, 1955 read with Clause.8(1) of the Order. He was convicted and sentenced to undergo simple imprisonment for three months. Hence this revision petition. 2. Ext.P1 mahazar was signed by PW1 who is its author. PWs.1 and 3 are the other two persons who signed the said mahazar. Both of them were members of the mobile squad led by PW.1 formed for the purpose of checking and inspecting vehicles or places used for contravention of the provisions of the Order. No other independent person had signed the mahazar. 3. The first contention of the learned counsel for the petitioner is that the search and seizure of the cart and husks were illegal on account of non-compliance with the provisions of S.100 of the Code of Criminal Procedure, 1973 (for short "the Code"). Clause.16 of the Order confers powers on Inspectors appointed under the Order to do certain acts enumerated in the said clause. Power to search any vehicle, vessel or receptacle in which the officer has reason to believe that a contravention of the Order has been, or is being or is about to be made, is included in the said clause. There can, therefore, be no doubt that the search conducted by PW1 would have been in exercise of the aforesaid power. Power to search any vehicle, vessel or receptacle in which the officer has reason to believe that a contravention of the Order has been, or is being or is about to be made, is included in the said clause. There can, therefore, be no doubt that the search conducted by PW1 would have been in exercise of the aforesaid power. Sub-clause (2) of Clause.16 of the Order reads as follows: "The provisions of S.102 and 103 of the Code of Criminal Procedure, 1898 (5 of 1898's relating to searches and seizures shall, so far as may be, apply to searches and seizure) under this clause." 4. S.102 and 103 of the Code of 1898 correspond to S.100 of the present Code. Sub-s (4) of the said section enjoins on an officer who makes a search "to call upon two or more independent inhabitants of the locality in which the place to be searched is situate" to attend and witness the search. Sub-s. (5) requires that the search must be made in the presence of those persons, and a list of all things seized in the course of such search shall be prepared and signed by such witnesses. Learned counsel cited a few decisions in support of the contention that a search made in contravention of the aforesaid provision is illegal and hence no legal action can be made on the basis of such a search. The learned Public Prosecutor on the other hand, cited a catena of decisions in favour of the position that mere non-compliance with the provisions of S.100 of the Code is not sufficient to fender the search illegal and that a conviction can be made in a criminal case where such a search is involved. But the main contention of the learned Public Prosecutor is that S.100 of the Code is not applicable when the search made is in respect of a moving vehicle though the vehicle was stopped before making the search. The basis of the contention is that the word "place" used in S.100 does not include a vehicle. The soundness of the aforesaid contention can be examined before considering the question whether non-compliance with S.100 will render the search and seizure invalid or illegal. 5. S.100 of the Code consists of eight sub-sections relating to the regulations regarding searches. The basis of the contention is that the word "place" used in S.100 does not include a vehicle. The soundness of the aforesaid contention can be examined before considering the question whether non-compliance with S.100 will render the search and seizure invalid or illegal. 5. S.100 of the Code consists of eight sub-sections relating to the regulations regarding searches. In all the sub-sections, except sub-section (8), the focus given is to the "place" to be searched. Sub section (8) only imposes a liability on the person who is required to witness the search. A reading of S.100 would show that the said section envisages searches in respect of any "place". Public Prosecutor in support of his contention cited the decision in Bhagwanbhai v. State of Maharashtra (1963 (2) Crl. Q 694). The question considered in that decision was whether a motor car searched by the prohibition squad can be considered as a place. S.17(a) of the Bombay Prohibition Act, 1949 contained a similar provision making S.102 and 103 of the old Code applicable to searches. The Supreme Court held that a motor car is not a 'place' within the meaning of those sections. 6. Normally, when the Supreme Court said like that, there would be no scope to take a different stand, even though I am not dealing with the same statute now. But a subsequent legislative exercise made by the Parliament warrants a revised approach to be made on that interpretation. The word "place" was defined in S.4(q) of the Code of 1898. "Place" includes also a house, building, tent and vessel". S.2(p) of the present Code defines place like this: "Place" includes a house, building, tent, vehicle and vessel". The difference in the two definitions is obvious, in that, the Code of 1898 never envisaged that "place" should include a vehicle. It was only with the introduction of the new Code, by Act 2 of 1974, that Parliament expressed its intention to stretch the scope of the word "place" to vehicles as well. The decision in Bhagwanbhai Dhulabhai's case was rendered by the Supreme Court on 24-7-1962, when the Code of 1898 was in force. Therefore, the view of the Supreme Court in Bhagwanbhai's case is not enforceable now. It is true that the definitions in S.2 of the Code are controlled by the general controlling clause set in the top of it "unless the context otherwise requires". Therefore, the view of the Supreme Court in Bhagwanbhai's case is not enforceable now. It is true that the definitions in S.2 of the Code are controlled by the general controlling clause set in the top of it "unless the context otherwise requires". There is no indication in S.100 that the word "place" is used there in a different context. 7. Next question, therefore, is whether non-compliance with S.100 of the Code would render the search and seizure illegal so that no conviction can be based on such search or seizure. 8. Learned counsel referred me to three decisions of the Madras High Court: Mangudi v. State (AIR 1971 Madras 275), Sundaram & Co. v. State (AIR. 1972 Madras 313) and M. K. Kuppuswami v. Taluk Supply Officer (AIR 1975 Madras 395). In all those decisions seizures of articles were challenged under Art.226 of the Constitution and decisions rendered by Single Judges of the Madras High Court took the view that non-compliance would render a search illegal. In Mangudi's case (AIR 1971 Madras 275), the learned Single Judge made a reference to Board of Revenue v. R. S. Jhaver (AIR 1968 SC 59) in which the books of account seized by Sales Tax authorities were ordered to be returned as the safeguards provided in S.165 of the Code of 1898 were not complied with. In the other two decisions, the Madras High Court followed the dictum laid down in Mangudi's case. In Bat Radha v. State of Gujarat (AIR 1970 SC 1396) a search effected without following the procedure prescribed in S.15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 was found to be not illegal. The learned Single Judge distinguished that Supreme Court decision in Mangudi's case mainly on the ground that it was a criminal prosecution. Radha Krishnan v. State of Uttar Pradesh (AIR 1963 SC 822) seems to be the authority for the position that a search conducted without complying with S.103 and 165 of the Code of 1898 is not illegal, and the only two consequences of such a search are (1) the person whose premises are searched can resist the search being conducted (2) the court may have to examine the evidence carefully in such cases. 9. A Full Bench of this Court in Kochan Velayudhan v. State of Kerala (1960 KLT. 9. A Full Bench of this Court in Kochan Velayudhan v. State of Kerala (1960 KLT. 753), after surveying a catena of decisions on the subject came to the conclusion that non-compliance with S.102 and 103 of the Code of 1898 by itself, will not vitiate the search and there is no legal impediment in relying on the evidence of such search in criminal cases. 10. That apart, sub-clause (2) of Clause.16 of the Order directs that provisions of S.102 and 103 of the old Code shall be applied only "so far as may be". In other words, the person conducting a search need follow the procedure laid down in the said sections only if it is possible, depending upon the circumstances in each case. PW1 has deposed in cross-examination that there was no residence or shop or hotel anywhere near the place where the cart was stopped by him. 11. For the aforesaid reasons, it can be concluded that the search and seizure made by PW1 cannot be jettisoned merely on account of non-compliance with S.100 of the Code. 12. Lastly, it was contended that provisions of Probation of Offenders Act may be invoked in this case, as the appellant was only carrying 592 coconut husks in a bullock care. The argument appeals to me, as the prosecution itself alleged that the contraband load belonged to one Aliyarkunju and the appellant was merely driving or riding the bullock cart with the said load. Learned Public Prosecutor also agreed that having regard to the circumstances of this case, the appellant can be given the benefit under S.4 of the Probation of Offenders Act, 1958. I consider that having regard to the circumstances of this case including the nature of the offence, it is expedient to release the appellant on probation of good conduct. I, therefore, direct that, instead of sentencing him at once to any punishment, the appellant be released on his entering into a bond for Rs. 1,000/- (without sureties) to appear and receive sentence when called upon during a period of six months. The bond shall be executed before the Judicial Magistrate of the First Glass, Kayamkulam within one month from today.