- (1.) THE instant criminal revision petition under Section 397/401 Cr. P. C. has been filed against the appellate judgment of the learned Additional District and Sessions Judge, Bali in criminal appeal No. 9/87, confirming the judgment of Munsiff and Judicial Magistrate, Desuri dated 16. 07. 1987 passed in criminal original case no. 31/82 convicting the petitioner u/sec. 4/9 of the Opium Act and sentencing him to rigorous imprisonment for one year.
(2.) HEARD Mr. P. N. Mohnani, learned counsel for the petitioner and Mrs. Chendra Lekha, learned Public Prosecutor. It was argued by the learned counsel for the petitioner that there is non-compliance of Section 165 of Cr. P. C. As per Section 16 of the Opium Act (in short "the Act" hereinafter) while a search is taken u/sec. 16 of the Act, the provisions of Section 165 of Cr. P. C. will apply and as no reasonable grounds have been recorded and nothing has been reduced in writing by P. W. 6 Abhay Karan to show that search under Section 14 or Section 15 of the act was made in accordance with the provisions of the Code of Criminal Procedure and in absence of the compliance of Section 165 of Cr. P. C. , the conviction of the petitioner is bad and cannot be maintained. For this proposition, he relied upon the following three judgments of this Court:- (1) Mithu Khan vs. State of Rajasthan (1) (2) State of Rajasthan vs. Balla Singh (2) (3) Pitamber Das vs. State of Rajasthan (3) In the alternative, learned counsel for the petitioner has prayed that the accused-petitioner may be released on probation. Mrs. Chendra Lekha, learned Public Prosecutor has supported the judgment of the first appellate Court and argued that the order passed by the Additional Sessions Judge, Bali is legal, proper and is liable to be maintained and the revision of the petitioner be dismissed. To appreciate the rival submission, the relevant provisions of law are to be looked into.
(3.) SECTION 165 of Cr. P. C. reads as under:- " 165. Search by police officer. (1) whenever an offence incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigation may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station. " Section 14 of the Opium Act is as follows:- " 14. Any officer of the department of Central Excise, Narcotics, Drugs Control, Customs, Revenue, Police or Excise, superior in rank to a peon or constable, authorized in this behalf by the Central Government or the State Government, who has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that opium liable to confiscation under this Act is kept or concealed in any building, vessel or enclosed place, may, between sunrise and sunset,- (a) enter into any such building, vessel or place; (b) in case of resistance, break open any door and remove any other obstacle to such entry; (c) seize such opium and any other thing which he has reason to believe to be liable to confiscation under Section 11 or any other law for the time being in force relating to opium; and (d) detain and search, and, if he thinks proper, arrest, any person whom he has reason to believe to be guilty of any offence relating to such opium under this or any other law for the time being in force. " Section 15 of the Opium Act reads as under: " Any officer of any of the said departments (a) seize, in any open place or in transit, any opium or other thing which he has reason to believe to the liable to confiscation under Sec. 11 or any other law for the time being in force relating to opium. " ;