SAKTI STEEL TRADERS v. ASHOKE CHAKRABORTY — 1992 DIGILAW 185 (CAL)

N. P. SINGH, C. J. ( 1 ) THIS appeal has been filed against an order passed by a learned Judge of this Court dismissing the application filed on behalf of the appellant for a writ of mandamus directing the respondents to restore possession of the articles seized from the godown of the appellant, on the basis of a search warrant, issued without any authority in law by the Sub-Divisional Judicial Magistrate, Serampore. ( 2 ) ACCORDING to the appellant, it deals in iron and steel scrap rerolling and for that purpose from time to time it has been purchasing the condemned wagons, iron and steel scraps from railways. ( 3 ) ON 7/08/1988, Truck No. WBQ-754 was intercepted by the Railway Protection Force at Dankuni. The vehicle was seized and the driver and the khalashi were arrested. Thereafter a complaint was made, alleging that the goods seized were stolen railway property and had been unlawfully obtained, as such action be taken in accordance with the provisions of the Railway Property (Unlawful Possession) Act, 1966. On the basis of the said complaint a case (Bally R. P. F. Post Case No. 3 (8) of 1988) was registered. Thereafter an application was made before the Sub-divisional Judicial Magistrate, Serampore, for issuance of search warrant for search of the godown of the appellant at Howrah. The Sub-divisional Judicial Magistrate, Serampore, issued a search warrant, on the basis of which the godown of the appellant in the District of Howrah was searched on 13-8-1988 and articles in question were seized. Later the seized articles were removed from the godown of the appellant. ( 4 ) THE validity of the search and the seizure has been questioned on the ground that the godown of the appellant being within the District of Howrah, could not have been searched on the basis of a search warrant issued by the Sub-divisional Judicial Magistrate, Serampore which is within the District of Hooghly. According to the appellant as the Sub-divisional Judicial Magistrate, Serampore had no jurisdiction to issue a search warrant in respect of the godown of the appellant located in another District, the search and seizure amounted to a futile exercise on the part of the respondents, without any authority in law, as such the appellant was entitled to the possession of the articles so seized. ( 5 ) THE learned Judge has accepted the stand taken on behalf of the appellant that the Sub-divisional Judicial Magistrate, Serampore had no authority to issue the search warrant for the search of the godown of the appellant. But, according to the learned Judge, in view of S. 460 read with S. 94 of the Criminal P. C. (hereinafter referred to as "the Code"), the search shall not be illegal so as to vitiate the seizure of the articles in question. The learned Judge has directed that the case be transferred from the Court of sub-divisional Judicial Magistrate, Serampore to the Court of Sub-divisional Judicial Magistrate, Howrah who has jurisdiction over the area from where the goods had been seized. ( 6 ) IN order to appreciate the grievance made on behalf of the appellant it is proper to refer to some of the provisions of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "the Act" ). The object of the Act is to consolidate and amend the law relating to unlawful possession of railway property. The penalty for unlawful possession of railway property has been prescribed in S. 3. S. 6 vests power in the members of the Force to arrest any person who has been concerned in an offence punishable under the Act. The relevant part of S. 8 is as follows :"8. Enquiry how to be made against arrested persons.- (1) When any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Sec. 7, he shall proceed to inquire into the charge against such person. (2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898) when investigating a cognizable case : provided that. . . . . "s. 10, which is relevant in the present case, is as follows :"10. . . . . "s. 10, which is relevant in the present case, is as follows :"10. Issue of search-warrant.- (1) If an officer of the force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over area in which that place is situate, for issue of a search-warrant. (2) The Magistrate to whom an application is made under Sub-Section (1), may, after such inquiry as he thinks necessary, by his warrant authorize any officer of the Force- (a) to enter, with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and (d) to convey such railway property before a magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, otherwise to dispose thereof in some place of safety. " (Emphasis added) S. 11 says -"11. Search and arrests how to be made - All searches and arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code. "s. 14 gives an overriding effect to the provisions of the Act. "14. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. "from reading S. 10 it appears that if an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he has to make an application to the Magistrate "having jurisdiction over the area in which that place is situate" for issue of a search-warrant. It may be pointed out that S. 10 of the Act and S. 94 of the Code, both are similar provisions vesting power in the Magistrate to issue search warrant authorising any member of the Force/any Police Officer to enter into any place and to search the same if there are reasons to believe that any such place is being used for deposit or sale of stolen railway property/stolen property. The relevant part of S. 94 of the Code is as follows :"94. Search of place suspected to contain stolen property, forged documents, etc.- (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this Section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable - (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this Section applies. . . . . . " ( 7 ) ALTHOUGH S. 94 of the Code as well as S. 10 of the Act have the same object, i. e. to authorise police officer or any member of the Force to search any place on basis of a search warrant, but there is a fundamental and basic difference at the same time. Whereas Sec. 94 does not prescribe any territorial limitation so far jurisdiction of the Magistrate is concerned; Section 10 does. It says in clear and unambiguous words that application for issuance of search warrant has to be made "to the Magistrate having jurisdiction over the area in which that place is situate". ( 8 ) NOW in this background on the basis of a search warrant issued by the Sub-divisional Judicial Magistrate, Serampore, who had admittedly no jurisdiction over Howrah Subdivision within which the godown of the appellant was situate, could there have been a valid search and seizure ? ( 8 ) NOW in this background on the basis of a search warrant issued by the Sub-divisional Judicial Magistrate, Serampore, who had admittedly no jurisdiction over Howrah Subdivision within which the godown of the appellant was situate, could there have been a valid search and seizure ? On behalf of the respondents it was urged that as Sec. 11 of the Act says that all searches made under the Act shall be carried out in accordance with the provisions of the Code relating to searches under that Code, S. 94 shall also be applicable. The learned Judge was also of the opinion that if Sec. 94 of the Code was applicable while conducting a search, then even if search has been conducted on the basis of a search warrant, issued by the Sub-divisional Judicial Magistrate, Serampore, S. 460 of the Code shall be attracted and as such the proceeding of search and seizure shall not be invalid on the ground that the Magistrate issuing the search warrant was not duly empowered. ( 9 ) IF it is held that S. 10 of the Act is not inconsistent with S. 94 of the Code, in respect of issuance of search warrant, then there should not be any difficulty in accepting the finding recorded by the learned Judge. But as has already been pointed out above, S. 10 requires the application to be made for issuance of search warrant only to the Magistrate "having jurisdiction over the area in which that place is situate" and only such Magistrate has been empowered by Sec. 10 to issue a search warrant. This part of S. 10 of the Act is clearly inconsistent with S. 94 of the Code which does not prescribe any such limitation on the power of the Magistrate concerned to issue a search warrant. Section 14 of the Act has a non obstante clause saying that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The importance of a non obstante clause need not be impressed. It is well-settled that any enactment having a non obstante clause will operate and be applicable to the exclusion of any other provisions operating in the same or similar field. The importance of a non obstante clause need not be impressed. It is well-settled that any enactment having a non obstante clause will operate and be applicable to the exclusion of any other provisions operating in the same or similar field. Reference in this connection may be made to the judgments of the Supreme Court in the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 ; in the case of A. V. Fernandez v. The State of Kerala, AIR 1957 SC 657 and in the case of South India Corporation (P.) Ltd. v. Secretary, Board of Revenue, Trivandrum, AIR 1964 SC 207 . It has been pointed out that effect of a non obstante clause is to obliterate any other provisions in any other Act within the area where the provisions of the Act are applicable. ( 10 ) THE overriding effect of Sec. 14 of the present Act itself was considered in the case of State of U. P. v. Durga Prasad, AIR 1974 SC 2136 : (1974 Cri LJ 1465 ). After pointing out how some of the Sections of the Act are different from the Sections of the Code, it was held that "provisions relating to inquiries under S. 8 (1) of the Act" are either expressly or by necessary implication inconsistent with some of the outstanding provisions of the Code governing investigations under Chapter XIV, called 'information to the Police and their Powers to Investigate'. It was then said :"the exclusion of an important provision of the Criminal P. C. in matters arising under the Act is not only reflected in Sec. 5 which deals with a facet of criminal trials, but the exclusion is more in evidence in the provisions of Sec. 14 of the Act. Under that Section the provisions of the Act take effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Each and every provision of the Code cannot therefore be superimposed on or read into the Act. The Act would prevail over the Code if on any matter there is inconsistency between the two. . . . . . . Each and every provision of the Code cannot therefore be superimposed on or read into the Act. The Act would prevail over the Code if on any matter there is inconsistency between the two. . . . . . . "again, in the case of Balkishan A. Devidayal v. State of Maharashtra, AIR 1981 SC 379 : (1980 Cri LJ 1424), the effect of S. 14 of the Act itself was considered and it was said :"s. 14 makes it clear that the provisions of the Act shall override all other laws. This means that if there is anything in the 1966 Act which is inconsistent with the Code, then on that point the 1966 Act will prevail and the application of the Code pro tanto will be excluded. The most important example of such exclusion, as already noticed, is to be found in Sec. 5 of the 1966 Act which makes an offence under this Act non-cognizable, notwithstanding anything in the Code. This clearly shows that the provisions of the Code cannot proprio vigore apply to any enquiry conducted under Sec. 8 (1) of the 1966 Act by an officer of the Force. Further, S. 6 of the 1966 Act empowers an officer or member of the Force to arrest without a warrant and without an order of the Magistrate any person concerned, or reasonably suspected of being concerned in an offence under the 1966 Act. This again is contrary to the scheme and content of the Code which must give way to the 1966 Act in this matter. "in such a situation, according to me, there is no escape from the conclusion that whenever a search of any premises is to be made in connection with deposit or sale of railway property in respect of which there are reasons to believe that they are stolen or unlawfully obtained, then the search warrant must be issued in accordance with the requirement of S. 10 of the Act. It cannot be urged that as S. 11 of the Act says that all searches shall be carried out in accordance with the provisions of the Code, even S. 94 of the Code shall become applicable and requirement of S. 10 of the Act can be ignored. It cannot be urged that as S. 11 of the Act says that all searches shall be carried out in accordance with the provisions of the Code, even S. 94 of the Code shall become applicable and requirement of S. 10 of the Act can be ignored. ( 11 ) SAME view was expressed in the case of Nilratan Sircar v. Lakshmi Narayan Ram Niwas, AIR 1965 SC 1 : (1965 (1) Cri LJ 100) while examining the scope of S. 19 of the Foreign Exchange Regulation Act (1947), it was pointed out :"the provisions of the Code relating to searches apply to search warrants issued under Sub-Sec. (3) of S. 19 but only insofar as they be applicable. The provisions dealing with the circumstances in which, and the authorities by which, search warrants can be issued cannot apply, in view of the specific provision for the issue of a search warrant under the Act in Sub-Section (3) of S. 19. Sections 96, 98 and Form 8 of Schedule V, do not therefore operate in connection with searches under Sub-Section (3) of S. 19. It is therefore the provisions which deal with what is done after the issue of a search warrant which have been made applicable to searches under the Act and such provisions therefore would be the provisions relating to the mode of conducting searches. " (Emphasis added)SECTION 10 of the Act applies at the stage of issuance of the search warrant itself; whereas S. 11 becomes applicable at the stage of conducting the search. As such if there is any inconsistency between S. 10 of the Act and S. 94 of the Code, that cannot be solved or harmonised with reference to S. 11 of the Act. The procedure for search may be common and consistent so far the Act and the Code are concerned, but if the provisions for issuance of search warrant are inconsistent in S. 10 of the Act with S. 94 of the Code, then the procedure prescribed in S. 10 of the Act shall override S. 94 and shall be applicable at the stage of issuance of the search warrant. In view of the admitted position that the Sub-divisional Judicial Magistrate, Serampore had no jurisdiction over the area in which the godown of the petitioner was situated, the issuance of the search warrant by him shall amount t exercise of power without authority in law. ( 12 ) NOW it has to be examined as to what shall be the effect over the seizure of the articles in question, which were seized on basis of search warrant issued by a Magistrate having no jurisdiction over the area where search was to be conducted. According to the trial Judge in spite of the fact that the Magistrate issuing the search warrant had no jurisdiction over the area where search was to be made, the search and seizure shall not be invalid in view of Section 460 of the Code. The relevant part of S. 460 of the Code is as follows :"460. Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely, (a) to issue a search warrant under Sec. 94;. . . . . . . . . . . . . . . . . . . . . . . . erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. "from a bare reference to the aforesaid S. 460 of the Code, it appears that the framers of the Code wanted to validate the search conducted on basis of search warrant issued under S. 94 of the Code by a Magistrate not so empowered. If S. 94 of the Code is not applicable, so far issuance of the search-warrant under S. 10 of the Act is concerned, then Sec. 460 of the Code cannot validate the search and seizure made on the basis of a search warrant issued under S. 10 of the Act by a Magistrate having no jurisdiction over the area in which the place is situate. ( 13 ) IN the case of K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711 : (1979 Cri LJ 651), effect of non-compliance of S. 54 of Mysore Excise Act was considered. ( 13 ) IN the case of K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711 : (1979 Cri LJ 651), effect of non-compliance of S. 54 of Mysore Excise Act was considered. Section 54 required the Inspector who had searched the car of the accused, to record the ground on the basis of which he had a reasonable belief that an offence under the Act had been committed. While making the search of the car, the provisions of S. 54 of that Act were not complied with. It was said :"this, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss. 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Ss. 53 and 54. The High Court observed that these two Sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word 'place' would not include the car, but the definition of the word 'place' under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of S. 54 which renders the search completely without jurisdiction. In that view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him. We are satisfied that there has been a direct non-compliance of the provisions of S. 54 which renders the search completely without jurisdiction. In that view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him. " (Emphasis added) ( 14 ) A Constitution Bench of the Supreme Court in the well-known case of Wazir Chand v. State of Himachal Pradesh, AIR 1954 SC 415 : (1954 Cri LJ 1029), after referring to different provisions of the Criminal P. C. came to the conclusion that the seizure was without any authority of law and then it was said :"the whole affair was a hole-and orner affair between the officers of the Kashmir Police and of the Chamba Police without any reference to any Magistrate It is obvious that the procedure adopted by the Kashmir and the Chamba Police was in utter violation of the provisions of law and could not be defended under cover of any legal authorit That being so, the seizure of these goods from the possession of the petitioner or his servants amounted to an infringement of his fundamental rights both under Art. 19 and Art. 31 of the Constitution and relief should have been granted to him under Art. 226 of the Constitution. " (Emphasis added) ( 15 ) ON behalf of the appellant it was urged that once it is held that the search and seizure was invalid and illegal, then the articles which have been seized have to be returned to the appellant. Reliance in this connection was placed on the judgment of the Constitution Bench of the Supreme Court in the case of Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver, AIR 1968 SC 59 , where it was said :"we have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residential accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filled in. But this was not done. That conclusion of the High Court has not been challenged before us. But this was not done. That conclusion of the High Court has not been challenged before us. The High Court has further held that a proper and reasonable opportunity was not given to the persons concerned to show that the goods seized were not properly accounted for in their account-books, though this finding is not material now for we have held that Sub-Section (4) falls in its entirety. It follows therefore that anything recovered from the search of the residential accommodation on the basis of this effective warrant must be returned. " (Emphasis added)SAME view has been reiterated recently in the case of Smt. Kusum Lata Singhal v. Commissioner of Income-tax, Rajasthan, Jaipur, AIR 1991 SC 236 : (1990 Tax LR 1022) :"our attention was also drawn to the observations of this Court in Commr. of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver, AIR 1968 SC 59 in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking that would be so. This proposition is unexceptional but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this case. " (Emphasis added)A Bench of this Court in the case of Hindustan Motors Limited v. T. N. Kaul, (1971) CLJ 181, after recording a finding that the search and seizure was illegal, directed that all the articles seized by the officers in connection with such illegal search "must be restored to the appellants. " ( 16 ) ACCORDING to the respondents in spite of the search and seizure having been made on the basis of an illegal search warrant, the seizure shall not be vitiated. In support of this contention reference was made to a judgment of the Supreme Court in the case of Pooran Mal v. Director of Inspection (Investigation) of Income-tax, New Delhi, AIR 1974 SC 348 : (1974 Tax LR 340 ). In support of this contention reference was made to a judgment of the Supreme Court in the case of Pooran Mal v. Director of Inspection (Investigation) of Income-tax, New Delhi, AIR 1974 SC 348 : (1974 Tax LR 340 ). From a bare reference to the aforesaid judgment it shall appear that the Supreme Court pointed out "that even if the search and seizure were in contravention of the provisions of S. 132 of the Income-tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted". In that case the Supreme Court was not concerned with the question as to whether the articles seized pursuant to an illegal search warrant should be restored to the person from whose custody such articles had been seized; the Supreme Court was examining the question as to whether the material so seized was liable to be used as evidence against the person from whose possession it was seized. ( 17 ) REFERENCE was also made to the case of State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 : (1980 Cri LJ 429), where it was said :"taking the first contention first, it may be observed that the police had powers under the Criminal P. C. to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs. " ( 18 ) IN my view, the judgments referred to above on behalf of the respondents do not have much bearing on the controversy involved in the present appeal. In the present appeal we are not concerned as to whether the respondents can at a trial lead evidence on basis of the search and seizure aforesaid made on the basis of an invalid search warrant, against the accused persons. In the present appeal we are not concerned as to whether the respondents can at a trial lead evidence on basis of the search and seizure aforesaid made on the basis of an invalid search warrant, against the accused persons. For the present we are concerned as to whether the articles seized on the basis of an invalid search warrant have to be restored to the appellant from whose custody such articles have been seized. In view of the judgments referred to above, according to me, the articles seized have to be returned to the appellant from whose custody they were seized. ( 19 ) THE learned Judge has issued a direction that the case before the Sub-divisional Judicial Magistrate, Serampore be transferred to the Sub-divisional Judicial Magistrate, Howrah. But by merely transferring the case from the Sub-divisional Judicial Magistrate, Serampore to the Sub-divisional Judicial Magistrate, Howrah, invalidity of the search and seizure made on 13-8-1988 shall not be validated. ( 20 ) ACCORDINGLY, I allow the appeal and direct that the articles seized from the godown of the appellant be restored to the appellant within three weeks from the date of production of this order. While returning the seized articles pursuant to this order, for purpose of enquiry or trial, it shall be open to the respondents to keep some of the articles seized which are said to be stolen railway property. List of such articles shall be filed before the Court of Competent Jurisdiction with an undertaking that the same shall be returned to the appellant as per direction of the Court, if it is held that they are not stolen railway property within the meaning of the Act. ( 21 ) BEFORE I part with this judgment I make it clear that this judgment shall not be a bar on the part of the authorities of the Railway Protection Force to take fresh steps in accordance with law in respect of search and seizure of the articles which are said to be stolen railway property. ( 22 ) I agree. Appeal allowed.