G. K. SHARMA, J. - (1.) THE State of Rajasthan has preferred this appeal against the judgment dt. 18-12-79 passed by the Sessions Judge, Jhalawar, by which, he set aside the conviction of the respondent passed by the learned C. J. M. , Jhalawar.
(2.) RESPONDENT Balla Singh was prosecuted for the offence u/s. 4/9 of the Opium Act. After concluding trial the learned C J. M. vide his judgment dt. 31st January,. "77 found the respondent Balla Singh guilty of the offence u/s. 4/9 of the Opium Act and sentenced him for three year's R. I. and a fine of Rs. 20,000/-and in default of payment of fine, to further undergo six month's R I. Aggrieved by this, judgment Balla Singh has preferred an appeal before the Sessions Judge, Jhalawar, who, while accepting the appeal, set aside the judgment of the C. J. M. and acquitted respondent Balla Singh from the charge u/s 4/9 of the Opium Act. The learned Public Prosecutor argued that the Opium Officer Nirmal Singh received an information about keeping opium by Balla Singh in his house. On this information, he took the police-party and went to the house of Balla Singh and took search of his house. During search he found opium in 30 packets weighing. 264 Kg & 500 grams. And, the learned Sessions Judge has committed error in acquitting the respondent Balla Singh. On behalf of Balla Singh it has been argued that in the judgment of learned Sessions Judge the provisions with regard to search as laid down in Cr. Procedure Code, have not (sic) been followed. He has relied on the case of State of Raj. Vs. Rehman (1) and on the case of, K. L. Sushayya Vs. State of Karnataka (2 ). Both these cases were also cited' before the learned Sessions Judge and he has also relied on these cases. Considered the arguments advanced by both the learned counsel. Sec. 14 of the Opium Act gives power to enter, arrest and seize on information that opium which is unlawful possession in any enclosed place. While referring this Sec. the learned Public Prosecutor argued that Shri Nirmal Singh (PW2) was authorised to enter and seize the opium from an enclosed place and this Sec. has no mention about this provision that before entering he should make some writing with regard to taking search. In this light it is mentioned that Sec. 14 empowers an officer to enter into any building and take search. He is empowered to detain any person and arrest that person also. So this Sec. 14 enables an officer to enter into enclosed place to take search, seize the article and even detain or arrest the person. There is another Sec. 16 which indicates how the searches are to be made. In this Sec. 16, it has been mentioned that all searches U/s 14 or Sec. 15 shall be made in accordance to the provisions of the Code of Cr. Procedure. Sec. 14 is with regard to enclosed place while Sec. 15 is with regard to an open place. Sec. 165 of the Cr. Procedure Code is with regard to search. This, Sec. 165 of the Cr. Procedure Code reads as such: - "whenever an officer in charge of a police station or a police officer making an investigation has reasonable ground for believing that anything necessary for the purposes of an investigation into any offence which is authorised to investigate may be found in any place within the limits of the police station of which he is in-charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds on his behalf 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. " The powers given to a police officer U/s, 165, Cr. P. C. are identical to the powers given to an Opium Officer taking search or seizing opium. Under this Sec. 165 four conditions are imposed; (1) The police officer must have reasonable ground for believing that anything necessary for the purposes of an investigation of an offence cannot, in his opinion, be obtained otherwise then by making a search, without undue delay : (2) he should record in writing the grounds of his belief and specifying in such writing so far as possible, the thing for which the search is to be made : (3) he must conduct the search, if practicable, in person and (4) if it is not practicable to make the search himself he must record in writing the reasons for not himself making the search and shall authorise a subordinate officer to make the search after specifying in writing the place to be searched, and so far as possible the things for which search is to be made. Unless these four conditions are followed it cannot be said that the search was in accordance of the provisions of Sec. 165 Cr. P. C.
(3.) IN the present case Shri Nirmal Singh entered the house of Balla Singh and took search there but he had not made any record of any ground on the basis of which he had areasonable belief that an offence under the Opium Act was being committed before proceeding to search the house. He should have recorded in writing the ground of proceeding to take search. He should have recorded in writing the grounds for believing that are necessary to take search of the house of Balla. The learned Sessions Judge in his Judgment has quoted the: decisions of State of Raj Vs. Rahman (supra) and K. L. Suchayya Vs. State of Karnataka (supra) and relying on these two decisions the learned Sessions Judge came to this conclusion that the provisions of sec. 165 Cr. PC. have not been complied with and the search taken by Nirmal Singh - Opium Officer was not in accordance with the provisions of this Sec. The learned Sessions Judge has correctly appreciated the law and has correctly set aside the judgment of conviction passed by the learned C. J. M. I agree with the finding of the learned Sessions Judge and see no reason to interfere in the judgment of acquittal passed by him. As a result, the State appeal is dismissed. . ;