Ram Singh and others Vs State of M.P.

S.P. Bhargava, J.@mdashThe six appellants have filed this appeal against their convictions made in Sessions Trial No. 3 of 1972 of the Court of the Sessions Judge, Dewas. The accused-appellants have been convicted as under:--

All the aforesaid sentences have been ordered to run concurrently.

2. The prosecution case briefly stated is that on 1-7-1971 the police party consisting of Head-constables Umashankar (P.W. 1) and Janaksihgh (P.W. 3) and constables Khalil (P.W. 4) and Harpal (P.W. 10) along with excise-contractor Phoolchand P.W. 6) went to the house of Ramsingh at village Thana in Kannod Tahsil for seizing illicit liquor from his house. They actually seized some liquor as testified by Moolchand (P.W. 5) and Nemichand (P.W. 9) and arrested Ramsingh.

3. While Ramsingh was being taken to the police station, it is stated that the accused forming an unlawful assembly with the common object of getting Ramsingh released from the police custody, attacked the aforesaid police party. The accused pelted stones and it is urged against Ramsingh that he caused an incised wound 3/4 x "� " x 1" on lateral and lower part of right elbow of Umashankar (P.W. 1). He inflicted this injury by using an arrow like a rod. The other injuries suffered by Umashankar are:--

(i) Simple abrasion 3/4 "x 1" on the back side at second thoracic region.

(ii) Simple abrasion 1-1/4 "x 1" on the left scapular region.

Dr. Pendharkar (P.W. 2) who had examined Umashankar (P.W. 1) opined that the injuries were fresh and their duration was 12 hours and the incised injury aforesaid could be caused by an arrow while the rest could be caused by a hard and blunt weapon. His medical report is Ex. P. 3 on record. The injuries suffered by Janaksingh (P.W. 3) Vide the medical report Ex. P. 2 by constable Harpal (P.W. 10) Vide the medical report Ex. P. 4, and by Phoolchand (P.W. 6) Vide the medical report Ex. P. 5 are all simple injuries. All of them were examined by Dr. Pendharkar (P.W. 2). The injuries sustained by constable Khalil (P.W. 4) were also simple injuries. His medical report is Ex. P. 6 on record.

4. The trial Court convicted all the accused on the finding that they were members of an unlawful assembly, they had deterred a public servant in the discharge of his duty and they were guilty of the offence of rioting. As against Ramsingh the Court held that he was guilty of the offence punishable u/s 307 IPC.

5. The first contention raised by the Learned Counsel for the appellants is that the said Head-constables, constables and Phoolchand had no right to enter the dwelling house of Ramsingh. It has further been contended that as they had no right to enter the premises they had no right to effect seizure of articles and arrest Ramsingh. It is contended that as the seizure of articles and arrest are illegal, the accused were within their right in preventing the Head-constable from making any arrest. It has also been contended that factually the arrest was not made as the memo of arrest (Ex. P. 11) shows the arrest to have been effected at 1.20 P.M. It has also been urged that in any event the injury sustained by Umashankar was an injury punishable u/s 324 I.P.C. and there is no ground for reaching the conclusion that Ramsingh or any one else amongst the accused wanted to commit his murder. Lastly, it has been contended that Ramsingh has been in jail continuously from the time that the judgment of the Sessions Court was delivered, i.e. from 29-1-1972 and has already suffered more than 14 months'' rigorous imprisonment. Similarly, Rama and Gulab, both of whom are 21 years of age, have already been in jail from 29-1-1972 to 13-5-1972. In respect of the other three appellants Mansing, Kansingh and Sitaram, it is contended that they were also in jail from 29-1-1972 to 13-4-1972. It is contended that the sentence undergone by each one of the appellants was sufficient considering the ends of justice and it was not necessary, even if their conviction was to be maintained, to sent them to jail again to serve any additional term of imprisonment.

6. The facts established by the prosecution evidence clearly appear to be that the raiding party headed by Janaksingh Head-constable [P.W. 3] who was in charge of Kantaphod police-station on 1-7-1971, raided the Tapri of Ramsingh and recovered from there two bottles of liquor. The seizure memo of the two bottles of liquor Ex. P. 10 is on record. It is also manifest that after the recovery of the alleged illicitly distilled liquor Ramsingh was arrested in his tapri. There can be no doubt that this tapri was being used by him as his dwelling house. The question therefore for consideration is as to whether under the provisions of sections 52 and 54 of the Excise Act which are the only sections dealing with the power of seizure, detention or arrest, the action of the said raiding party was justified.

7. Sections 52 and 54 of the Excise Act read as follows:--

52 Powers to arrest without warrant to seize article liable to confiscation and to make searches--(1) Any Excise officer or any police officer not below such rank as the State Government may by notification prescribe, or any single officer or class of officers of the Land Revenue Department duly empowered in this behalf by notification of the State Government, subject to such restrictions as the State Government may prescribe, and any other person, duly empowered by notification of the State Government in this behalf may:--

(a) arrest without warrant any person found committing an oneness punishable u/s 34, section 35, section 36 section 36-A, section 36-B, section 36-C or section 37 ; and

(b) seize and detain any intoxicant or other article which he has reason to believe to be liable to confiscation, under this Act or any other law for the time being in force relating to excise-revenue: and

(c) datain and search any parson upon whom, and any vessel, raft, vehicle, animal, package, receptacle, or covering in on upon which he may have reasonable cause to suspect any such article to be.

(2) When any person is accused or reasonably suspected of committing an offence under this Act, and on demand of such officer refuses to give him name and residence or gives a name and residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name and residence may be ascertained.

54. Power to search without a warrant :--Whenever any Excise Officer not below such rank as the State Government may, by notification prescribe, has reason to believe that an offence u/s 34, section 35, section 36, section 36 A section 36-B, section 36-C, section 37, section 38, section 38-A, section 39, or section 40 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 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 be guilty of such offence as afore said.

8. The delegation of powers made by the State Government under these sections is published in the Madhya Pradesh Rajpatra dated 31st July 1959. The relevant matter is to be found at page 1039. u/s 62 powers have been delegated to police officers not below the rank of Sub-Inspector and to any police officer in charge of a police station not below the rank of head constable. This delegation would apparently entitle Janksingh to exercise the powers stated in section 52. However, under clause XXI of the delegation u/s 52 it has been clearly provided that no police officer below the rank of sub-Inspector shall enter into any dwelling-house in exercise of the powers conferred by section 52 of the Act. The general powers conferred on the police officers are thus clearly controlled by the specific provision that the right of entry into dwelling house has not been conferred on any police officer below the rank of Sub-Inspector. It is thus clear that Janaksingh who was not a Sub-Inspector himself and was merely in charge of a police station on the date of the incident, his substantive rank being that of a Head Constable, could not enter the dwelling house of Ramsingh for any of the purposes specified in section 52.

9. The learned Government Advocate then relied on the powers u/s 54 of the Act to justify the search without a warrant by the raiding party headed by Janaksingh. In my opinion the contention of the Learned Counsel for the appellants that u/s 54 the delegation of powers could only be in favour of an officer of the Excise Department is not correct. The word ''Excise Officer'' has been defend in section 2 (7) to mean a Collector or any officer or other person appointed or invested with powers u/s 7 section 7 enacts as follows:--

7. Establishment and powers thereof.--The State Government may by notification, for the whole or for any specified part of the State.

... ... ... ...

(c) Appoint officers of the Excise Department of such classes and with such designations, powers, and duties as the State Government may think fit;

(b) order that all or any of the powers and duties assigned by or under this Act to any officer appointed under clause (c) shall be exercised and performed by any servant of the Government or any other person.

In the notification published in the Madhya Pradesh Rajpatra dated 31st July 1959, at page 1039, there is delegation of powers u/s 54 in favour of a police officer in charge of a police station not below the rank of a Head-constable. Thus, it becomes clear that the Head-constable was entitled to invoke the power u/s 54 of the Act reproduced above. However, in my opinion the delegation of powers in section 54 does not help Janaksingh (P.W. 3) who was the Head-constable in charge of Kantaphod Police station at the relevant time. In the present case the search was desired to be taken for an offence u/s 34 of the Act, namely, for manufacturing and possession of illicit liquor which is punishable under that section. Before searching the house of Ramsingh without a warrant it was obligatory upon-Janaksingh (P.W. 3) who led the raiding party to record the grounds of his belief that a search warrant could not be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence and then alone he could have entered the house and searched it and seized anything from therein which he had reason to believe to be liable to confiscation under the Act and to tender and search and if he thought proper arrest any person found in such place whom he had reason to believe to be guilty of such offence as aforesaid.

10. The recording of reasons u/s 54 of the Act an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. In Ex. P. 7 all that has been recorded by Janaksingh is that he started from the police station for taking the search. It had not been stated at all that the search warrant could not be obtained without giving the offender an opportunity of escape or of concealing evidence of the offence. The provisions of section 165 of the Code of Criminal Procedure should be followed in the matter of searches as search is a process having some arbitrariness in character and therefore stringent statutory conditions are imposed on the exercise of the power.

11. In State v. Rehman AIR 1985 Raj 296 it was held that where the Deputy Superintendent of Central Excise accompanied by his subordinate went to the house of a person with a view to search his house to find out whether he had stored tobacco there and attempted to take the search without recording the reasons upon which the house owner obstructed the making of the search with the result that the Deputy Superintendent fell down and received some injuries. On prosecution for an offence u/s 353, I.P.C. it was held that the respondent in obstructing the Deputy Superintendent from making the illegal search did not commit any offence. The view of the Rajasthan High Court was affirmed in appeal in The State of Rajasthan Vs. Rehman,

12. In AIR 1957 93 (Nagpur) the facts were that a police officer with a view to search the house forced open the door and went inside. Reason for the search without a warrant were not recorded. The police party was therefore obstructed, bodily pushed and one of the officer was assaulted. On prosecution for an offence u/s 332 I.P.C. it was held that no grounds required by section 40 of the C.P. and Berar Prohibition Act were recorded by the police officer who sought to carry on the search. As such the police officer could not be said to have acted in the exercise of the powers under the Prohibition Act and the accused therefore could not be convicted. In Hajari v. State 1959 MPLJ SN 113, it was held that it was not permissible to engraft exceptions to the provisions of section 59 of the Exercise Act based on urgency that, if he had waited to record the reason before entry, the evidence would have been destroyed.

13. In the case of Premchand and others v. The State (1965) 2 Cri LJ 843, it was held that where there was no evidence that the Exercise Inspector proceeds to search the premises after recording in writing the grounds of his belief and specifying in such writing the thing for which the search was to be made, his omission to do so rendered the search illegal and the accused were fully justified in resisting such a search of their premises. The same view appears to have been taken in Queen Empress v. Jogendra Nath Mukerjee ILR 21 Cal. 320.

14. u/s 99 of the Indian Penal Code it is provided that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under color of his office though that direction may not be strictly justifiable by law. Explanation I which goes with this paragraph provides that a person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. The words "not strictly justifiable by law" are not intended to cure the want of jurisdiction but only an erroneous exercise of it. When the error affects the procedure rather than the principle it would be covered by the clause. The section has no application to a case where the initial proceeding and the power under which any public servant purports to act are altogether without jurisdiction See Queen Empress v. Jogendra Nath Mukerjee ILR 24 Cal. 320, and Haq Dad and others v. The Crown ILR 6 Lah. 392.

15. There can be little doubt that the time of arrest shown to be 1.20 P.M. in Ex. P. 11 is clearly fictitious. Ramsingh was clearly arrested much earlier at his house in the course of the raid made by the raiding party.

15. I am fully satisfied that the evidence on record does not prove that the murder of Head constable Umashankar (P.W. 1) was attempted to be committed. The raiding party has exaggerate the part played by Ramsingh and those others who tried to hold him when the search of his house was illegally taken and he was subjected to an illegal arrest in consequence of that illegal search. It is significant that even the ladies of the family of the male accused and a child were implicated, all of whom have been acquitted by the trial. It also appears from the evidence that the dispute arose because bail was not offered to Ramsingh though the offence was boilable. It is in evidence that the arrow was not shot by him but a blow was inflicted by using it in the manner of a lathe. If the assault made by Ramsingh and his associates on the raiding party was not justified under the right of private defence I would have held Ramsingh guilty u/s 324 I.P.C. for having inflicted a simple injury with a sharp edged weapon and would have held his associates guilty u/s 324 read with section 34 I.P.C. and sentenced them to the period of imprisonment already undergone but as I have already concluded that the action of the raiding party was justified by their right of private defence of person and possibly also of property, this appeal deserves to be allowed and the convictions and sentences of all the appellants deserve to be set aside.

17. In the result, this appeal is allowed. Each one of the appellants is acquitted of the charges found proved against them by the lower Court. The bail bonds of the accused-appellants are cancelled. They will not be required to surrender to serve out any portion of the sentence imposed on them.