Judgment N. K. AGARWAL J. ( 1 ) A complaint (Ex. P. 6) was filed by the Enforcement Inspector with the allegation that at the time of inspection of the shop of Mis J. Nagpal and Company, certain tyres and tubes were found in the stock, but neither the stock position nor the prices of the saleable goods had been displayed by the dealer at the shop. The complaint was made against the firm M/s J. Nagpal and Company Amer Road, Jaipur and also its proprietor, Mr. Kesnwan and Nagpal and the proprietors son, ML Rajendra Kumar Nagpal At the time of inspection by the Enforcement Inspector, it was Shri Rajendra Kumar, who was found at the shop because his father, who was the proprietor of the business, was away to Sri. Ganganager due to illness of his mother. 22 tyres of different sizes and 6 tubes were found in stock and these were taken into possession by the Enforcement Inspector under Seizure Memo (Ex. P. 2) because the stock had not been displayed nor the prices had been shown on the notice board as required under the Rajasthan Trade Articles (Licencing and Control) Order 1980. ( 2 ) THE goods, so seized, were given on Supurdgi to Shri Yogesh Kumar (PW. 2) under Ex. P. 3. Copies of the application for the grant of licence, filed by the dealer (Ex. P. 5) arid the licence granted in respect of Patrolium Products (Ex. P. 4), were also filed. During trial, 3 witnesses were examined by the prosecution. The accused persons also produced 3 witnesses in defence, but the Trial Judge acquitted the 3 accused of the charge u/s 317 of the E. C Act on the ground that no independent and respectable inhabitant had been called by the Enforcement Inspector at the time of inspection and seizure of goods. It was also observed that the proprietor of the firm was not present at the shop and no sale had been effected on the date of inspection (114/1983 ). Certain bills had been issued by the dealer in respect of sales, but no bill had been issued on the date of inspection. It was also held by the Trial Judge that the dealer had closed his books of account on 31st of March, 1983 and for that reason, no business transactions had been effected on 1/4/1983, the date of inspection. It was also held by the Trial Judge that the dealer had closed his books of account on 31st of March, 1983 and for that reason, no business transactions had been effected on 1/4/1983, the date of inspection. ( 3 ) THE order of acquittal has been challenged with the plea that there was no illegality even if two witnesses of the locality were not called by the Enforcement Inspector at the time of inspection and seizure. It was, at the most, an irregularity. It is argued on behalf of the State that the requirement of law that the respectablelnd independent witnesses should normally be called, was only a directory provision and not a mandatory requirement. It has also been pointed out that the absence of proprietor at the time of inspection cannot help the accused-dealer because when the shop was open and business was being done by the son of the proprietor, it made no difference that the proprietor was away, to Sri Ganganagar. ( 4 ) RELIANCE has been placed by the learned Public Prosecutor on the decision of the Supreme Court in the case of State of Kerala etc. v. Alasserry Mohammed etc. It was a case where certain samples of food were taken in possession, but it was less than the prescribed quantity. It was held that if the sample, sent to the Public Analyst, was sufficient for analysis and if certain report was submitted by the Public Analyst, it would not be treated to be a mandatory requirement. Rule 22 of the Food Adulteration Rules was held to be directory and not mandatory. From the facts, it appears that the quantity of the sample was found to be less than the prescribed quantity, it is in this context that Rule 22, laying down the quantity of the sample, was held to be directory and not mandatory. On the peculiar facts of the case, I do not find that the same decision would apply to the facts of the case of the appellant here. In other case State of Maharashtra v. Natwarlal Damordardas Soni, a question had arisen about the smuggling of gold in India. Section 135 (1), Customs Act had been invoked against the accused. On the peculiar facts of the case, I do not find that the same decision would apply to the facts of the case of the appellant here. In other case State of Maharashtra v. Natwarlal Damordardas Soni, a question had arisen about the smuggling of gold in India. Section 135 (1), Customs Act had been invoked against the accused. The question which had arisen before the Supreme Court was whether the accused had acquired gold in his possession and whether it was smuggled gold brought in India in contravention of the Govt. notification. Information on the basis of which the police had conducted search had not been produced in the Court. It was, therefore, held that even if the search was illegal, it will not vitiate the seizure and consequent trial. In the case of State of Maharashtra v. P. K. Pathak, Supreme Court had again an occasion to examine a case of search under the Customs Act. Certain foreign goods had been smuggled into India and certain violation of law was found in the search operation. In that case, smuggled goods had been recovered by the Customs authorities at the sea-shore and-bushes on an island. The absence of independent witness from the locality was held to be not sufficient to render the seizure as illegal because it was not practical nor reasonable to expect any person of the locality to witness the search. In the case of Asstt. Collector of Central Excise v. Wilfred Sebastian and others, it has been held that illegality of a search will not affect the seizure of the articles. That was also a case relating to the smuggling of foreign goods into India. The question had arisen whether the accused had acquired possession in violation of Section 135 (1) of the Customs Act. ( 5 ) THE facts of the present case are entirely different and here there was no situation that independent and respectable inhabitants were not available at all. Therefore, the decisions relied upon by the learned Public Prosecutor are found to be distinguishable because in those cases seizures had been made under the Customs Act. Those were cases relating to smuggling of the goods. Therefore, the decisions relied upon by the learned Public Prosecutor are found to be distinguishable because in those cases seizures had been made under the Customs Act. Those were cases relating to smuggling of the goods. Here, the case relates to the violation of Clause 30 (2) of the Rajasthan Trade Articles (Licensing and Control) order, 1980, which reads as under: clause 30 (2) : The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause. ( 6 ) SECTION 100 (4) of the Code of Criminal Procedure requires the presence of the witnesses at the time of any search by a Police Officer. Sub-section 4 of Section 100 Cr. P. C read under: section 100 (4):-Before making a search under this Chapter, the officer or other person about to make it shall. call upon two or more independent and respectable inhabitants of the beauty in which the place to be searched is situated or of any other locality if no such sic or is willing to be a witness to the search, to attend and witness the search to and may issue an order in writing to them or any of them so to do. ( 7 ) IT would be, thus, obvious that a search operation must be conducted, so far as may be, in the presence of two independent and respectable inhabitants of the locality. If, due to any reason, persons of the locality were not available or were not willing to be witnesses in a search, the search officer may issue an order in writing to any person to attend. No explanation has been given as to why this requirement of law was not fulfilled. No independent witness has been produced either. Out of three witnesses, examined by the prosecution, two persons are officers of the Enforcement and one person is Yogesh Kumar (PW 2), who has however, not supported the prosecution case. He has sic cross-examination that a Board was found at the shop on which the stock position as well as prices had been written. This makes the prosecution case quite doubtful and in this context, Section 100 (4) Cr. P. C assumes greater significance. He has sic cross-examination that a Board was found at the shop on which the stock position as well as prices had been written. This makes the prosecution case quite doubtful and in this context, Section 100 (4) Cr. P. C assumes greater significance. The defence witnesses have stated in their depositions that the proprietor was not available at the time of inspection. No sale had taken place on the day of seizure. It is, therefore, possible that no business transactions were required to be effected and, for that reason, the business in tubes and tayres had been dosed on that day. Since it was the first day of April, the books of account had already been dosed and it was another reason that no business had been transacted on that day. No bills relating to sales were found on that day. In these circumstances, the explanation of the accused-respondents that no business was at all done on the date of stock assumes importance. The non complain 100 Cr. P. C creates a serious doubt on the vain section by the Enforcement Officers. Non-productions-local witnesses in support of the prosecution case in the Trial Court, also raises doubts on the prosecution case. The explanation given by the dealer that the stock position as well as the prices had been displayed on the notice board as on 31st of March, cannot be rejected outright because this plea was raised at the time of cross-examination of Mr. Onkar Saxena, Enforcement Inspector (PW. 3 ). The only independent witness, produced by the prosecution, is Mr. Yogesh Kumar, but he has not supported the prosecution case. In the result, I find no force in the Appeal and it is rejected. Appeal dismissed.