Joginder Singh and others vs The State

M.S. Gujral, J.—Joginder Singh, Uttam Singh, Mukhtiar Singh and Jit Singh were tried alongwith five others u/s 333, Indian Penal Code, read with Section 149, Indian Penal Code, Section 332, read with Section 149 Indian Penal Code, and Section 149, indian Penal Code and by order dated 15th April, 1969, of the Additional Sessions Judge, Hissar, the four Appellants were convicted u/s 333, read with Section 34, Indian Penal Code, and Section 332, read with Section 4, Indian Penal Code, while five other accused were acquitted. The Appellants have been sentenced to two years'' rigorous imprisonment each u/s 333, read with Section 34, Indian Penal Code, with a fine of Rs 250/-each, and to one years rigorous imprisonmnent each u/s 332, read with Section 34, Indian Penal Code. Being aggrieved the convicts have come up in appeal to this Court.

The case of the prosecution is that on 11th of January, 1967. Shri Hardit Singh, Assistant Sub-Inspector of Police, Police Station Sadar Hissar received secret information that the Appellants were distilling illicit liquor and on getting this information he formed a raiding party after sending a ruqa to the police station for registration of the case. The raiding party consisted of Dhan Singh, Kheta Ram and Har Chand P. Ws. besides some police constables and some members of the excise staff. A tempo was hired and the entire party reached village Dhani Piranwali and went to plot No 43 where the liquor was being distilled. Shri Hardit Singh P.W. found bad smell of lahan coming from the jhugi of Joginder Singh and the raiding party surrounded the jhugi in order to recover the working still. The story further is that the four Appellants and the five other accused were present inside the jhugi and finding it surrounded they came out and started causing injuries to Hardit Singh and his companions. At that time Joginder Singh is alleged to have been armed with an iron palta while the other accused were armed with lathis. The raiding party also resisted and caused some injuries to the accused in return in order to defend themselves. Out of the raiding party Hardit Singh A,S.I. Dhan Singh, Mohinder Singh and Om Parkash received injuries while on the side of the accused Jita Mukhtiar Singh, Joginder Singh and Mohri Bai received injuries. Hardit Singh had also fired three shots from his revolver in order to scare the assailants and this had the desired effect. After causing injuries the accused tried to run away and excepting Jit Singh, who was apprehended at the spot, the others made good their escape. Hardit Singh then lodged the report at Police Station Sadar, Hissar, at about 9 p.m. on the basis of which the accused were tried, convicted and sentenced as above.

On behalf of the Appellants the only contention raised before me is that as the search was illegal the accused had a right of private defence of person and had therefore not committed any offence by causing injuries to the raiding party. It is contended that u/s 50 of the Punjab Excise Act searches under this Act are to be conducted in accordance with the provisions of the Code of Criminal Procedure, and this being the position provisions of Section 165, Code of Criminal Procedure, were applicable to the search which was to be conducted by the raiding party. It was further contended that Section 165, Code of Criminal Procedure required that the officer conducting the search without a warrant was to record in writing the grounds of his belief that the thing to be searched could not be obtained without undue delay and had also to mention the thing for which the search was to be made. It was pointed out that as this provision was not complied with the search was illegal and the accused would be entitled to the exercise of the right of private defence of property and person.

Support for the above argument is sought from The State of Rajasthan Vs. Rehman, Prem Chand and Ors. v. The State, (1964) 66 P.L.R. 569. and Mithukhan Vs. State of Rajasthan,

The ruqa sent by Hardit Singh A.S.I. on the basis of which the case was registered has not been produced on the file and there is no evidence to show whether any case had been registered or not. Moreover, Hardit Singh has admitted that he had no warrant from any magistrate to search the jhugi and that he had not recorded any reasons before going to the jhugi to effect search therein. From the above evidence it would appear that there has been breach of Section 165(1) of the Code of Criminal Procedure, the compliance of which was necessary under the provisions of Section 50 of the Punjab Excise Act.

In State of Rajasthan v. Rehman the Supreme Court has observed that provisions of Section 165, Code of Criminal Procedure, must be followed in the matter of searches under Rule 201 of the Rules framed under tee Central Excise and Salt Tax Act, and a search where provisions of Section 165 were ignored would be a search made in contravention of the provisions of the Code and would be illegal. The observations of the Supreme Court are fully applicable to the facts of the present case The combined effect of Section 50 of the Punjab Excise Act and Section 165 of the Code of Criminal Procedure is that before a search could be made the officer authorised to search was to record reasons and also to mention the article which was to be searched. This undoubtedly has not been done in the case and consequently the search was illegal and the accused had a right to defend themselves.

This point also came up for consideration by this Court in Prem Chand v. The State (1964) 66 P.L.R. 569. and it was held as under:-

Under Sections 49 and 50 of the Punjab Excise Act an Excise Inspector is fully competent to search premises without a warrant but while doing so, he is required to follow the procedure laid down in Section 165 of the Code of "Criminal Procedure. His Omission to record in writing before search, the grounds of his belief as to the existence of anything necessary for investigation within the premises and specifying in such writing, so far as possible, the thing for which the search is to be made, renders the search illegal. The person occupying the premises is fully justified in resisting such a search.

In Mathukhan v. State of Rajasthan (3) it was further observed that the acts of the officers did not attract the exception contained in Section 99 of Penal Code since u/s 52 of the Penal Code they could not be considered to be bona fide. The act of the officer being in contravention of the mandatory provisions of law, it has to be held to have been done without due care and attention and was therefore, not bona fide within the meanding of the Section 52 of the Penal Code. Moreover, in this case there is evidence that the police party was armed with revolver and rifles and there could be apprehension of grievous hurt to the accused. This being the position the exception contained in Section 99 of the Penal Code is not available to the police party and on that account also the accused had the right to defend themselves.

For the reasons stated above, I am of the view that the accused had acted in the exercise of their right of private defence of person and property and had, therefore, not committed any offence. The result is that the appeal is accepted and the conviction and sentences of the Appellants are set aside. Fine if paid, shall be refunded. The accused are on bail and their bail-bonds shall stand discharged.