P L D 1955 Lahore 368 (PLP)

On 14th December 1953, Muhammad Bashir (P. W. 1) Food Grains Supervisor of Shahdara Mandi, who is admittedly not a Gazetted Officer of the Food Department or an "Inspector within the meaning of section 2 (f) of the Notification under discussion, obtained information that Siddique respondent was going to work his rice‑husking mill in Chak No. 39 in the course of the night. This mill had earlier been sealed by the Food Department because Muhammad Siddique respondent had no permit or license to work it as a " rice‑husking mill ". At midnight, on the night between 14th and 75th December, 1953 in the company of certain persons, Muhammad Bashir (P. W. 1) raided the said mill. He found it working and called the lambardar and chaukidar: He took into possession 1 maunds of rice. 2 maunds of khanjan (half‑husked rice), 20 seers of rice husk and 10 bags of paddy, which were lying there. This entering of the premises by Muhammad Bashir (P. W.1) and the search and seizure made by him admittedly contravened the provisions of section 7 of the Notification Muhammad Siddique was prosecuted for a contravention of section 5 (1) of the Notification and, on the ground that P. W. 7 did not possess the powers of an " Inspector " mentioned above, the learned trial Magistrate, after the examination of P. W. 1, dismissed the prosecution case and discharged Muhammad Siddique respondent. As discharges of accused persons for breaches of various orders made under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, all of which define ` Inspector " in more or less the same was rind give more or less similar powers to the " Inspector ", are common in this district, and some of the Magistrates have been taking the view that where entering into the premises, the search, or the seizure, have been made by a person who is not an "Inspector" the prosecution case should be dismissed, the Crown, who want an authoritative decision on the point, have come up in revision. The learned Public Prosecutor has urged that under the provisions of section 5 (2) of the Cr. P. C. 1898, contravention of section 7 of the Essential Supplies (Temporary Powers) Act, 1946, shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Cr. P. C. but subject to the provisions of section 7 of the Notification, regulating the manner and place of investigation and enquiry etc. It is noted that section 7 of the notification gives powers to the " Inspector ", within the meaning of the notification, only for the purpose of " the more effective enforcement of the provision of this order ". The provisions of the order are, therefore, supplementary to the powers of investigation, enquiry and trial given by the Code of Criminal Procedure, except to the extent to which the " Inspector's " powers of seizure and search, etc., are con cerned. It will be noted that section 7 touches upon the points of entry, questioning, search, and seizure only. It does not provide for any separate mode of " trial ". If a person is not an " Inspector " and questions someone sus pected of * a contravention of clause (ii) of section 7, such person will not be visited by the penalties prescribed in the P. P. C. for the breach of such a statutory provision. In my humble submission, the contravention of the order by the person, who is guilty of a breach of the law under section 7 of the Essential Supplies Act, or his trial for that offence, are not affected, because the search, etc., have been by a person not authorised as an " Inspector ". If I am correct in this view of the matter, the dismissal of such cases by the Magistrates in this district and the dismissal of the prosecution case in the present case cannot be justified. The learned Public Prosecutor has drawn my attention to Shivbhat Manjunath Bhat Hattangadi v. Emperor (A I R 1928 Bom. 162) where a Division Bench observed that a conviction or acquittal does not depend upon the question of the particular officer who actually conducts the investigation, which results in his trial. That is determined mainly by the evidence that is given at the trial and considered ; the question whether that evidence has, in the first place, been elicited by an Inspector or Sub‑Inspector, is of very minor importance and does not really affect the result of a trial, except to this extent that the theory is that the higher the rank of the police officer investigating, the more careful and un impeachable the enquiry is likely to be. I fail to see how this authority applies to the present case where the question does not relate to an Inspector of Police in the ordinary sense but to " Inspector " under the special provisions with which we are concerned. He further draws my attention to the case of Guru Subramania Chetty v. Emperor (A I R 1941 Mad. 181) where the arrest of a person for an offence under section 406 I. P. C. had been illegal and he, on that ground, objected to the competency of the Magistrate to try him. It was held by a Single Bench that the propriety of the arrest had no bearing on the subsequent proceedings. This case, I think, supports the contention of the learned Public Prosecutor. As the trial had to be under the Code of Criminal Procedure, notwithstanding the provisions regarding entry, questioning, search and seizure, contained in section 7 of the notification, the learned Magistrate, in my submission, erred in law in dismissing the case. I would have felt inclined to send the case back to the trial Magistrate for further enquiry, as I am competent to do. However, both the Crown and the respondent press me to submit the case to the‑ High Court for tin authori tative pronouncement on the matter, as the point is cropping up frequently in Courts in this district. Learned counsel for Muhammad Siddique respondent asks me to make mention of one more point in this reference, which he desires to take. He states that under a notification, dated the 9th February 1954, the notification to which the present case relates was withdrawn by the Punjab Government. He, therefore, urges that the prose cution is not now competent. He has cited B. Bansgopal v. Emperor (A I R 1933 All. 669 (FB)) which I think has no application to the present case because in this case, the prosecution had already been launched before the order was withdrawn. Nor is this a case of a temporary ordinance, which expired auto matically, as was the case in the Allahabad ruling cited by the learned counsel. The argument also ignores the provisions of section 6 (d) of the General Clauses Act, (X of 1897). S. A. Mahmud, Assistant Advocate‑General, for Petitioner. Nemo, for Respondent. ORDER. OF THE HIGH COURT KAIKAUS, J.‑This judgment will dispose of Criminal Revisions Nos. 545 and 907 of 1954 which are cases reported by the learned Sessions Judge, Lahore at Sheikhupura, and in which the same point is involved. Criminal Revision No. 545 of 1954 relates to the case of one Muhammad Siddique who was challaned under section 7 of the Essential Supplies (Temporary Powers) Act, read with section 8 of the Punjab Paddy and Rice (Procurement and Milling Control) Order, 1953. By virtue of section 5 of the above‑mentioned order no person other than an Authorised Rice Miller can process paddy into rice. On the night between the 14th and 15th of December, 1953, Muhammad Siddique had been found by Mr. Muhammad Bashir, a Food Grains Supervisor who organised a raiding party, husking and milling paddy. He was admittedly not an authorised rice‑miller. The second case relates to one Muhammad Bashir who was found by Sultan Anwar, Assistant Sub‑Inspector of Police, . Mangtanwala, to be transporting paddy on a truck on the 12th of February 1953. Under section 3 of the Punjab Paddy and Rice (Movement Control) Order, 1953, no person can transport paddy by means of a mechanical transport from one place to the other within the Punjab without a permit by the Director of Food Purchases, Punjab. Any person who violates the provisions of section 3 commits an offence under section 7 of the Essential Supplies (Temporary Powers) Act, read with section 3 of the above-mentioned Order. Both the accused have been discharged by the learned Magistrates, who tried them, on the ground that in each case the person who conducted the search had no authority under the law to do so. That is the sole point on which the accused have been discharged. In one case the learned Magistrate, who tried the case, has expressed an opinion on the merits against the accused, while in the other no opinion has been expressed but the evidence has not been disbelieved. It will be observed that in one case the search was con ducted by Muhammad Bashir, a Food Grains Supervisor, and in the other by an Assistant Sub‑Inspector of Police. Under section 7 of the Punjab Paddy and Rice (Procurement and Milling Control) Order, 1953, and section 6 of the Punjab Paddy and Rice (Movement Control) Order, 1953, it is only the Inspector who can conduct a search. " Inspector " is defined in both the orders and admittedly it does not cover either the Food Grains Inspector or the Assistant Sub Inspector. It is obvious, therefore, that the officer who conducted the search in either of the two cases had no authority to do so. Learned counsel appearing on behalf of the Crown referred in the first place to section 156 (2) of the Cr. P. C. by virtue of which section proceedings of a police officer in a case which he investigates cannot be called in question on the ground that the case was not one in which the police officer was empowered to investigate. I am of the opinion that this section would not affect the present case. The effect of this section is that investigation by a police officer, who is not in fact empowered to investigate, does not in any way affect the trial of the accused. We are not concerned here with that matter. However, with respect to the general question as to whether the illegality of a search would have any effect on the merits of the trial, I agree with the learned counsel for the Crown that it would have no effect except with respect to the weight of evidence. An accused person cannot be acquitted simply on the ground that the search in consequence of which the evidence against him came into existence was illegal. There is no provision either in the Evidence Act or in the Cr. P. C., which excludes such evidence or which vitiates a trial on this ground. The only question before the trial Courts was whether an offence had been committed. If on the evidence before them they found an offence had been committed they could not hold the accused to be not A guilty simply because some officer acting bona fide, though in excess of his authority, had conducted the search as a result of which the accused were being prosecuted. The point is not really one on which any authority would be needed or which requires an elaborate discussion. I may, however, refer to some cases where similar objections were put forward and overruled. Under section 30 of the Arms Act a search can be conducted only in presence of a person specially appointed. In Emperor v. Kutroo (A I R 1925 All. 434) a search was conducted by a Patwari who was a police officer under a local Act but was not a police officer entitled to search under section 30 of the Arms Act. The Magistrate had in that case acquitted the accused on the ground of illegality of search. A Division Bench of the Allahabad High Court held that the view was wrong that the illegality of the search did not in any way vitiate the trial. This case was followed in another case under the Arms Act, Mohan Lahiri v. The King (A I R 1950 Pat. 243). In Promod Chandra Shekhar v. Rex (A I R 1951 All. 546) and Keshava Nand Srivastava v. The State (A I R 1952 All. 122), the question for decision was whether an investigation by an officer who was not entitled to investigate under the provisions of section 3 of the Preven tion of Corruption Act could be the basis of a conviction. It was held that section 156 (2) of the Cr. P. C., cured any defect in the proceedings. Shivbhat Manjunathbhat Hattangadi v. Emperor (A I R 1928 Born. 162), is a case of an offence under the Railways Act. The investigation was by an officer not entitled to conduct it and it was similarly held that that did not in any way prevent a conviction of the accused. There are a number of cases in which searches were not conducted in accordance with the provisions of sections 103 and 165 Cr. P. C. but it was held that that did not in any way affect the legality of the proceedings. I may refer to Daulat Ram v. Emperor (A I R 1933 Lah. 809) and Ali Ahmad Khan v. King Emperor (A I R 1924 All. 214). I would, therefore, set aside the order of discharge in both the cases and order a further enquiry. There was one point mentioned in the order of the learned Sessions Judge in one of the cases which has not been argued before me. It had not been argued even before the learned Magistrate. The point is whether the withdrawal of the Punjab Government Notification by means of which the order, a violation of which is the basis of the offence will affect the prosecution. As the matter has not been argued before me at all I would not go into it, but it would be open to the accused to raise it at the hearing of the case. Before I conclude I have to refer to a matter to which the learned Sessions judge has drawn my attention. The learned Sessions judge has taken exception to the following paragraph at the end of the judgment of the learned Magistrate in one of the two cases :‑ "In the end I may mention that in Crown v. Abdul Rahman etc., under section 7 Essential Supplies (Temporary Powers) Act, 1946, tried by Mr. Anwar Shariq, Magistrate, the learned Additional District and Sessions Judge, Sheikhu pura, has been pleased to reopen the case after discharge on the above mentioned point, but I respectfully beg to disagree with him. The point about the definition of an Inspector and his duties is very clear and explicit. In my opinion when certain duties have been definitely assigned to the Inspector, no body who is not an Inspector is authorised to take action in that matter. The well accepted point that the Special Law overrides the General Law applies here and I would request the prosecution to move the Hon'ble High Court in this matter and get a ruling, because lot of time will be wasted in this dispute on a legal point between the trial Courts and the Court of the learned Additional District and Sessions Judge, Sheikhupura." The words used by the learned Magistrate with reference to the learned Additional Sessions Judge are obviously improper and uncalled for. I order that the paragraph quoted above be expunged from the judgment of the learned Magis trate. A. H. Further inquiry ordered.