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PETITIONER: K. L. SUBBAYYA

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT24/01/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR  711            1979 SCR  (2)1131  1979 SCC  (2) 115

ACT:      Mysore Excise  Act, s. 54, non-compliance of provisions under, if vitiates conviction-Ss. 53 and 54, purpose.

HEADNOTE:      The appellant  was convicted  under s. 34 of the Mysore Excise Act  and sentenced to three months R.I. and a fine of Rs. 100/-  for being  in possession of 48 bottles of liquor, recovered from the car being driven by him.      It was  contended that  the provisions of s. 54 had not been  complied   with,  and  the  search  was  made  without jurisdiction.      Allowing the appeal, the Court, ^      HELD: 1.  The Inspector  who searched  the car  of  the appellant had not made any record of any ground on the basis of which  he had  a reasonable  belief that an offence under the Act,  was being  committed, before  proceeding to search the car,  and thus  the provisions  of s. 54 were not at all complied with,  thereby rendering  the entire search without jurisdiction and,  as a  logical  corollary,  vitiating  the conviction. [1132H, 1133A-B]      2. Both, Sections 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. [1133B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1974.      Appeal by  Special Leave  from the  Judgment and  Order dated 22-11-1973  of the  Karnataka High  Court in  Criminal Appeal No. 221/73      S. S. Javali and B. P. Singh for the Appellant.      M. Veerappa and J. R. Dass for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-In this  appeal  by  Special  Leave  the appellant has  been convicted under section 34 of the Mysore Excise  Act   and  sentenced   to  three   months’  rigorous imprisonment and a fine of Rs. 100/- for being in possession of 48  bottles of  liquor which  were recovered  from a  car

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which  was   being  driven  by  the  appellant.  Mr.  Javali appearing for  the appellant has raised a short point before us. He  has submitted  that  the  Inspector  of  Excise  who searched the  car along with the panchas had no jurisdiction to do so because he did so without complying with 1132 the provisions  of section  54 of  the Excise  Act.  In  our opinion, the  contention is  well-founded and  must prevail, Section 53 runs thus:           "If a  Magistrate, upon information and after such      inquiry (if any) as he thinks necessary, has reasons to      believe that  an offence  under section 32, section 33,      section 34, section 36 or section 37 has been, is being      or is likely to be committed, he may issue a warrant-           (a) for  the search  of any  place in which he has      reason to  believe, that any intoxicant still, utensil,      implement, apparatus  or materials  which are  used for      the commission  of such  offence or in respect of which      such has been, is being, or is likely to be, committed,      are kept or concealed, and           (b) for  the arrest  of any  person  whom  he  has      reason to  believe to have been, to be, or to be likely      to be engaged in the commission of any such offence."      Thus this  section relates  to a  contingency where the Statute enjoins  that any inspector before searching a place must obtain  a warrant  from the magistrate. Section 54 is a special provision  which arises in urgent cases where it may not be  possible for  the officer concerned to get a warrant from the Magistrate. Section 54 runs thus:           "Whenever the  Excise  Commissioner  or  a  Deputy      Commissioner or  any police  officer not below the rank      of an  officer uncharge  of a  police  station  or  any      Excise Officer not below such rank as may be prescribed      has reason to believe that an offence under section 32,      section 33,  section 34,  section 36, or section 37 has      been, is  being, or is likely to be committed, and that      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-           (a)   at any  time by  day or  by night  enter and                search any  place and  seize  anything  found                therein which  he has reason to believe to be                liable to confiscation under this Act, and           (b)   detain and  search and, if he thinks proper,                arrest any person found in such place whom he                has reason  to believe  to be  guilty of such                offence as aforesaid."      In the  instant case, it is admitted that the inspector who searched  the car  of the  appellant had  not  made  any record of any ground on the basis 1133 of which  he had  a reasonable  belief that an offence under the Act, was being committed before proceeding to search the car and  thus the  provisions of  section 54 were not at all complied with.      This, therefore,  renders  the  entire  search  without jurisdiction  and  as  a  logical  corollary,  vitiates  the conviction. We  feel that  both sections  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  analyses  the  effect  of  the provisions of  section 53  and 54.  The High  Court observed

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that these  two sections  were wholly  irrelavant. 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 section 54 which renders the search completely  without jurisdiction. In this 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. M.R                                          Appeal allowed. 1134