Gulzar Singh vs The State

Shamsher Bahadur, J.—The petitioner Gulzar Singh has challenged his conviction u/s 167(81) of the Sea Customs Act and also the sentence of rigorous imprisonment of six months thereunder and subsequently reduced to four months in appeal by the learned Sessions Judge of Amritsar.

Both the petitioner and Ajaib Singh were prosecuted for having been found in possession of unauthorised gold. The raiding party was organised by P.W.1. Ujagar Singh, Inspector of Police, who associated with him Prem Singh, P.W.2, and N.N. Prashar, Deputy Superintendent Customs, P.W.3. The petitioner and his associate Ajaib Singh were found by the nakabandi party on Verka Road near Jethuwal minor atabout 8 P.M. on 2nd of August, 1958. When they were challenged, Ajaib Singh actually fired a shot from his revolver. The petitioner and Ajaib Singh were apprehended and on a search gold bearing foreign marks weighing 69 tolas; 5 mashas and 3 rattis, was recovered.

Both the accused were found guilty and sentenced to six months rigorous imprisonment each by the Magistrate 1st Class, Amritsar. Ajaib Singh did not appeal but Gulzar Singh did and his sentence was reduced to four months'' rigorous imprisonment by the learned Sessions Judge.

It has been contended by Mr. Bhalla, for the petitioner, that the mandatory provisions of section 165 of the Code of Criminal Procedure were not observed by P.W. Ujagar Singh. It is a requirement of this provision that a police officer before making a search has to record in writing the grounds of his belief that it is necessary. Admittedly no search record was made by the police officer in this case. As held by a Division Bench authority of the Lahore High Court (Marten and Bhandari JJ.) in Emperor v. Mohmmad Shah AIR 1946 Lah. 456, the provisions of section 165 of the Code of Criminal Procedure are mandatory and must be carried out fully, or as nearly as they can be in the exigencies and circumstances of each case. The question remains whether the violation of this mandatory provision is curable under the provisions of section 537 of the Code of Criminal Procedure. The evidence of recovery has been found to be trustworthy by the trial Magistrate and also by the lower appellate Court, and I have no reason to reach a contrary conclusion. The recovery has been touched by a Responsible officer of the Customs Department and a member of the public, and I have no reason to doubt that the neglect of the investigating officer in recording the reasons required of him u/s 165 has not resulted in any failure or miscarriage of justice. u/s 537 of the Code of Criminal Procedure, even if there is an illegality the High Court is not required to interfere except in cases where failure of justice has resulted therefrom. As observed by Ramaswami J. in re. T. Subramania Achari AIR 1955 Mad 129. in his conclusion at page 135:-

The net result of this analysis is that what has to be considered in each case is whether the illegality or irregularity complained of affected the competency of the Court or whether it had occasioned or must be taken to have occasioned a failure of justice ** Does the error go to the whole root of trial? Does it in effect vitiate the proceedings? Has the Court assumed an authority which it did not possess? Has it broken the vital rules of procedure? If the error is of such a nature then the proceedings are vitiated in their very inception and the section 537 has no application; but the mere fact that a certain provision of the Code is imperative does not itself indicate that a breach of the provision vitiates the whole proceedings.

In the present instance, the breach of the imperative provision has not resulted in any manifest injustice. The witnesses of recovery are reliable and their testimony has been accepted by the two Courts below. If the police officer had recorded his reasons as required by law, it would undoubtedly have provided a safeguard and a check but in the context of this case I do not consider that by his neglect any failure of justice has ensued. A Full Bench decision of this Court (Harnam Singh, Falshaw and Dulat JJ.) in Krishen Kumar Vs. The State, , also lays down a similar proposition of law. It was held that section 537 of the Code of Criminal Procedure does not make any distinction between an "illegality" and "irregularity". All that has to be seen is whether the infringement of the provisions of the Code had led or occasioned a failure of justice. Contravention of "mandatory" provisions of the Code does not vitiate the trial if no prejudice occurs or is likely to occur.

Such being the legal position, I see no force in the argument of the learned counsel for the petitioner. I would accordingly uphold the conviction. As regards the sentence it has been pointed out by the learned counsel that the petitioner has been in jail for about two months. I consider that ends of justice would be served if the sentence of imprisonment is reduced to that which the petitioner has already undergone. The petition would be allowed to the extent thus indicated.