Murlidhar - (1.) THE applicant Khima Nand Belwal has been convicted under Section 60 (1) (a) of the Excise Act (hereinafter called the Act) and sentenced to one year's R. I. and a fine of Rs. 1000/-, in default further six months R. I.
(2.) THE prosecution case was that on 13-9-1978 at about 1. 45 P. M. the applicant who is a driver in the U. P, Government Roadways was found leaving the Bus Stand in a rickshaw with a [holdall. He was intercepted by the Excise party which resulted in the recovery of 85 quarter bottles popularly known as nips of M. M. B. whisky and Carews imperial whisky. THE defence was a denial and false implication after his signatures had been obtained on a paper on the pretext that he was being made a witness. Both the courts below rejected the defence. The only point pressed in revision is that the search and recovery vide recovery memo Ex. Ka-1 were illegal because no search warrant had been obtained as required by Section 52 of the Act, Rule 281 (c) of the U. P. Excise Rules nor was the alternative of recording a memorandum for the grounds of belief that search warrant cannot be obtained without affording the offender an opportunity to escape or concealing evidence of the offence made before conducting the search warrant as required by Rule 281 (c). Reliance has been placed on K. L. Subhaiya v. State of Karnataka, AIR 1979 SC 71. In that case the legality of the search had to be tested in the background of Sections 53 and 54 of the Karnataka Excise Act. Under Section 53 the Magistrate was to issue a search warrant if he had reasons to believe that an offence under the penal provisions specified in the Section had been, was being or was likely to be committed. Under Section 54 if the Excise Officer concerned had reasons to believe that a search warrant with regard to the aforesaid offence could not be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence he could after recording the grounds of his belief enter and search any place and seize anything found therein likely to confiscation under the Act. Bui the word 'place' under the definition clause Of the Act included vehicle and the recovery in that case was from a car. In this situation the Supreme Court held that Sections 53 and 54 contained valuable safeguards for the liberty of the citizens in order to protect them from ill founded or frivolous prosecution and harassment and the search of the car without a search warrant and without even making a memorandum as required by Section 54 was illegal. The provisions of the U. P. Act and Rules, however are not identical with those of the Karnataka Act. In the first place the word' 'place' under Section 3 (22) is difined to include a house, building, shop, room, booth, tent and vessel. This cannot be extended to cover a rickshaw and in any case the visible holdall of a person going in a rickshaw. Under Section 50 of the U. P. Act, the power of arrest, seizure and detention is very wide and the Excise Officer is, inter alia, entitled to detain and search any person upon whom and any vessel, vehicle, animal, package, receptacle or covering In or upon which he suspects that any confiscatable article to be present. Section 52 of the U. P. Act is parallel to Section 53 of the Karnataka Act and empowers the Collector to issue a search warrant "for the search of any intoxicant, materials, still, utensil, impliment or apparatus in respect the offence has been or is likely to be committed." Section 53 provides for search without warrant and states that if there is reason to believe that the offence is being or is likely to be "committed in any place and that a search warrant cannot be obtained without affording the offender an opportunity to escape or of concealing evidence of the offence" he may search without a warrant after recording a memorandum about the grounds of his belief. Thus, section 53 about preparation of memoradum would apply only if a place is to be searched. Section 52 about a search warrant does not refer to place as such mentioning only the offending article for which the search is effected but this too must be held limited to search of a place. This is clear from Rule 281 (c) which states that a search warrant in Form D-18 in all cases should be obtained as provided for in Section 52 of the Excise Act. Now the language of Form D-18 limits the issue of a warrant to a place because this Form speaks of an offence "Likely to be committed at or in... ......and authorising and empowering the officer concerned to enter the said house or other place with such assistance-......" The words 'at' or 'in' could not be beyond a placet and entry has specifically been spoken of into a house or a place. The conclusion is inescapable that Section 52 also like Section 53 covers only search of a place and will not cover the search of a person or search of an article which does not fall in the definition of a 'place'. The power to search such articles also exists under Section 50 but Sections 52 and 53 are not co-extensive with Section 50 of the Act. If search is to be effected in a place Sections 52 and 53 would apply otherwise the police or the Excise Officer have power to detain and search under section 50 if they have reasonable cause to suspect any offence to have been committed. It does transpire that the U. P. Act is narrower than the Karnataka Act inasmuch as a vehicle has not been specifically included in the definition of a place. But apart from this even if a vehicle be regarded a place on facts the present cannot be regarded a case of search of a vehicle. It is a case of search of a package which was visible on the rickshaw of the applicant. Such search of a package does not attract the provisions of Sections 53 and 54 of the Act. The search cannot, therefore, be held to be illegal, and the conviction must stand. The only other point pressed was regarding sentence. The record shows that the applicant has been in jail for a few days. The whisky recovered has already been confiscated. The prohibition! in these areas has now been done away with. There is no suggestion that the liquor was illicit. In these circumstances I think the remaining sentence of imprisonment should be converted into one of fine.
(3.) IN the result, the revision is partly allowed. The conviction of the applicant is confirmed but the sentence of one year's R. I. and a fine of Rs. 1000/- is reduced to the period already undergone plus a fine of Rs. 3000/-, in default one year's R. I. Two month's time from the date of receipt of the record in the court below is allowed for payment of fine. The applicant is on bail and need not surrender in case the fine is paid within the time allowed. Revision partly allowed.;