K.C.Dhuliya - (1.) THE applicant was convicted under Section 60 (1) of U. P. Excise Act (in short the Act) and was sentenced to R. I. for a period of six months and a fine of Rs. 200(0/, in default of payment of fine he was ordered to undergo R. I. for further period of six months, by Additional Munsif Magistrate, Haldwani on 15-11-1980, in Criminal case No. 1333 of 1980. THE Magistrate also passed an order under sub-section (e) of Section 72 of the Act, confiscating the Ambassador Car No. USR 5969. He filed the appeal before the Sessions Judge, Nainital, who dismissed the same by judgment and order dated 1st February, 1982 affirming the conviction of the applicant and also confiscation of the Car. He, however, set aside the order regarding imposition of fine of Rs. 2000/- under Section 60 (1) the Act. Hence this revision.
(2.) THE material facts giving rise to this revision are these ; according to prosecution on 20-11-1978 at about 10.15 P. M., Nanhey, the applicant, owner and driver of ambassador Car No. USR 5969, was found carrying 144 bottles of country made liquors at Mohalla Dharampura, Haldwani, District Nainital, where prohibition was on force during that period. THE prosecution examined five witnesses in support of the case PW 1 P. D. Malik, Excise Inspector, and PW 3 Krishna Kumar, Excise; Constable, are the witnesses of fact and it is on their testimony that the applicant was convicted. Two other witnesses are formal viz., Head Moharrir Gopal Datt and Shiv Singh, who were called as Court witnesses to prove certain papers. The applicant-accused denied the case of prosecution. He, however, stated that he was bringing passengers from Lal Kunwa and it was from their attaches that the bottles of liquor were found, when a search was taken on Toll Barrier on Bareilly Road. He examined two defence witnesses. One of the defence witness is a clerk of the office of R. T. O. Kathgodam, Nainital, who stated that the taxi No. USR 5969 belonging to the applicant had permit only for Kumaon Region and not for outside area, meaning thereby that the Car was not permitted to ply between Haldwani and Bareilly. The second defence witness Shyamlal deposed that on that day he was also travelling in that taxi and no liquor was found in the taxi. I have heard learned counsel for the applicant at length as well as A.G.A. Learned counsel for the applicant has made one legal submission that the Excise Inspector has not followed the procedure laid down under rule 281 of the Rules framed under the Act and also guidelines given for search under Section 165 CrPC and as such the search is illegal, on account of which the trial is vitiated and the applicant is entitled for clear acquittal,
(3.) THE facts of the case are almost admitted. It is admitted that during the year in question or on the relevant date i.e. 20-11-1978, there was complete prohibition in the district of Naiaital. It is also admitted by the applicant that 144 country liquor bottels were recovered from his taxi at 10.15 P. M. His version is that the same belonged to the passengers which has not been believed by the two courts below. His stand was falsified by DW 2, Shyamlal, who deposed that he was travelling in the taxi and stated that in the taxi nothing incriminating was found. Regarding the testimony of DW 1 that the permit of the taxi was for Kumaon region only, is not in question, inasmuch as it is not the case of the prosecution that the bottles of country made liquor were imported from Bareilly. Lal Kunwa is in district Nainital, on way to Bareilly and the name of the road, is Bareilly Road, which does not mean that the liquor in question was being brought fr?m Bareilly. In fact learned counsel for the applicant did not raise any objection on the question of facts. He has placed reliance on two authorities of the Supreme Court and contended that the whole trial being illegal, as the procedure laid down was not followed and so his client should be acquitted. The first authority stated by the learned counsel is State of Rajasthan v. Rehman, AIR 1960 SC page 210. In that case the discussion was about applicability of Section 165 of the CrPC and the Central Excise and Salt tax Act. The facts of that case are entirely different from the present case. There was prosecution of Rehman under Section 353 of IPC. The accused was acquitted on the ground that the procedure ,as laid down under Section 165 CrPC for search was not followed, inasmuch as, the raid that was conducted under Central Excise and Salt Tax Act was without warrant and the raiding party led by Deputy Superintendent of Excise did not reduce anything in writing giving reasons for not obtaining warrant from the Magistrate, that the search was being conducted without any warrant as contemplated under Section 165 CrPC. The Supreme Court examined the relevant provisions of the Central Excise and Salt Tax Act and rules framed thereunder and Section 165 of the Criminal Procedure Code. The relevant portion of para 6 of the judgment may be extracted as under : 6 Under Section 18 of the Act all searches made under the Act or the Rules made thereunder shall be carried out in accordance with the provisions of the Code relating to searches under it. Section 37 empowers the Central Government to make rules for carrying into effect the purposes of the Act, and, in particular and without prejudice to the generality of the foregoing power, to make rules authorising and regulating this inspection of search of any place in so far as such inspection or search is essential for the proper levy and collection of duties imposed by the Act. The Central Government in exercise of the power conferred by that section framed Rule 201 authorising itself to empower any officer of any department under its control to enter and search at any time by day or night any land, building, enclosed place, premises, vessel, conveyance or other place upon or in which he has reason to believe that excisable goods are processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or the Rules.";