MITHUKHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application in revision by Mithukhan against his conviction under sections 332 and 353 of the Indian Penal Code.

(2.) THE case of the prosecution Is that on 31st October 1963. at about 7 p. m. Shri govind Gurnani, Inspector Narcotics on the information of an informer that the petitioner had contraband opium in his house, reached there along with members of his party. The petitioner was then present at his house. Panchas were called and his house was surrounded and while the search party was attempting to enter the house, the petitioner resisted the attempt and struck lathi blows on Amir mohd. Constable and Shafiq Ahmed, the informer, and thus the attempt of the raiding party to enter the petitioner's house was frustrated. Shri Gurnani called help from the police. But by the time the police arrived the petitioner had escaped. Thereafter search of the house was taken by Shri Gurnani with the help of the police, but nothing incriminating was found inside the house. It is said that yasinkhan son of the petitioner removed the lathi with which the constable and the informer were assaulted with the intention of screening the offender from legal punishment. On these facts the petitioner and his son were prosecuted the latter under Section 201 of the Indian Penal Code. A number of witnesses were examined on behalf of the prosecution and the trial magistrate found the petitioner as well as his son guilty of the offences with which they were charged On appeal the learned Sessions Judge, Kota acquitted the petitioner's son of the offence under Section 201 of the Indian Penal Code, but maintained the conviction and sentences passed on the petitioner by the trial court.

(3.) IN this court learned counsel for the petitioner has urged that according to section 16 of the Opium Act, 1878 (hereinafter called the Act), all searches under section 14 or 15 are to be made in accordance with the provisions of the Code of criminal Procedure. Section 14 of the Act empowers officers of the Central Excise, narcotics, Drugs Control, Customs, Revenue, Police or Excise, superior in rank to a person or constable, authorised in this behalf by the Central Government, to enter, arrest and seize on information opium unlawfully kept in any enclosed place. But in view of the provisions of Section 16 of the Act, the procedure laid down under the Code of Criminal Procedure is required to be followed by the officers mentioned in Section 14. It is urged by the learned counsel that in the present case the Inspector of narcotics did not comply with the provisions of Sub-sections (1) and (5) of Section 165 of the Code of Criminal Procedure which are mandatory in nature and whose non-compliance rendered the search illegal. Therefore, the petitioner was entitled to defend his property when attempt was made by the raiding party to enter his house where his females also resided. Reliance is placed in this connection on state of Rajasthan v. Rehman, AIR 1960 SC 210 and it is pointed out that Rule 201 of the Central Excise Act, contains provisions similar to sections 14 and 16 of the Act respectively and while considering the provisions under the Central Excise act the Supreme Court held that "provisions of section 165 of the Code of Criminal procedure must be followed in the matter of searches under rule 201 of the Rules and a search where provisions of Section 165 are ignored, would be a search made in contravention of the provisions of the Code and would be illegal. " on the authority of this case it is urged by the learned counsel that under the opium Act too if the officer authorised under section 14 of the Act taking the search does not comply with the provisions of section 165 of the Code of Criminal procedure, the search would be illegal and if any resistance has been, offered during the course of that search and members of the raiding party have even been assaulted, they would be protected under section 97 of the Indian Penal Code as exercising the right of private defence of property.