# Rajasthan v. Rehman

- **Citation:** [1960] 1 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 1957-09-20
- **Case number:** Criminal Appeal No. 39 of 1958
- **Bench:** P. B: Gajendragadkar, K. SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajasthan-v-rehman-1849
- **Pages:** 7

## Headnote

Criminal Trial-Search by Excise Officer-Failure to record
reasons-Search, if illegal-Central Excise and Salt Act, 1944, (I of
r944), s. I4-Central Excise Rules, r944, r. 20I-Code of Criminal
Procedure, r898, (V of r898), s. r65.
I959
October I4
A Deputy Superintendent of Central Excise, on receiving
information that the respondent had cultivated tobacco but had
not paid excise duty thereon, went to search the house of the
respondent with a view to find out whether he had stored tobacco
there. The respondent obstructed the making of the search with
the result that the Deputy Superintendent fell down and was
injured. The respondent was prosecuted under s. 353, Indian
Penal Code, but was acquitted on the ground that the search was
illegal as it was made by the Deputy Superintendent without
"'--
recording the reasons as required by s. 165, Code of Criminal
Procedure. The appellant contended that s. 165 of the Code was
not applicable to a search under the Central Excise and Salt Act.
Held, that s. 165 of the Code of Criminal Procedure was
applicable to such a search also and the search being in contravention of s. 165 was illegal. Section 18 of the Central Excise and
I959
The State of
Rajasthan
v.
Rehman
992
SUPREME COURT REPORTS [1960(1)]
Salt Act provided that searches under that Act shall ·be carried
out in accordance with the provisions of the Code of Criminal
Procedure.
An excise officer was authorised to make a search
only for the investigation of an offence. Such a search approximated to a search made by a police officer during the course of
investigation of a cognizable offence, and in both cases the search
had to be conducted in accordance with the provisions of s. 165
of the Code.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 39 of 1958. ·
Appeal from the judgment and order dated September 20, 1957, of the Rajasthan High Court Bench, at
Jaipur, in D. B. Criminal Appeal No. 154 of 1956,
arising out of the judgment and order dated the
August 4, 1956, of the Munsiff-Magistrate, Hindaun in
Case No. 313 of 1953,
R.H. Dhebar, for the appellant.
The respondent did not appear.
1959. October 14. Tho Judgment of the Court
was delivered by
Subba Rao J.
SuBBA RAO J.-This is an appeal by certificate
granted by the High Court of Judicature for the State
of Rajasthan, under Art. 134 (l)(c) of the Constitution
against its judgment dated September 20, 1957, confirming that of the Munsif-Magistrate, Hinduan, ~cquit
ting the appellant of the charge under s. 353 of the
Indian Penal Code.
The material facts lie in a small compass. The
Deputy Superintendent of the Central Excise, having
his head-quarters at Bharatpur, received information
that one Sulled and his son, Rehman, the respondent
herein, had cultivated tobacco but had not paid the
excise duty payable thereon. On September 9, 1953,
the Deputy Superintendent, accomyanied by an
Inspector of Central Excise, a sepoy, a chowkidar and
two motbirs, went to the house of Rehman at 2 p.m.,
with a view to search his house to find out whether
he had stored tobacco there. When they declared
their intention to do so, the respondent and one
Dhamman, it is alleged, obstructed the making of the
I•
-1
s.c.it.
SUPR:ffiME COURT REPORTS
993
search ; with the result that the Duputy Superintendent fell down and received some injuries. The
respondent and Dhamman were prosecuted, and the
Munsif-Magistrate, Hinduan, discharged Dhamman
but convicted the respondent under s. 353 of the
Indian Penal Code and sentenced him to undergo
three months' rigorous imprisonment. On appeal,
the Additional Sessions Judge came to the conclusion
that on the material then available the search had
not been conducted in accordance with s. 165 of the
Criminal Procedure Code and remanded the case for
fresh enquiry. On remand, the Munsif-Magistrate
found that the search was made by the Deputy
Superintendent without recording the reasons as he
should under s. 165 of the Criminal Procedure Code
and that the respondent in obstru

## Text

\
S.C.R.
SUPREME COURT REPORTS
991
departmental proceedings that took place against him
1959
should have been instituted in the manner provided
--:- h h
· th'
·
Th
·
£
·
h"
te t"
M.NaraS1m ac ar
m
1s proviso.
ere 1s no orce m t 1s con n ion
v.
because the proviso only comes into force when the
The state of
departmental proceedings take place after the officer
Mysore
has given up service. It does not apply to a case like
the present where the departmental proceedings took
Wam:hoo f.
place while the appellant was still in service.
Before we leave this case, we may point out that the
appellant contended that the Fundamental Rules of
the Government of India applied to him. This again
is wrong for what apply to him are the Regulations
and not th.e Fundamental Rules of the Government of
India.
We are therefore of opinion that there is no force
in this appeal. It is hereby dismissed. In the circumstances of the -case we pass no order as to costs and
Court fee.
Appeal dismissed.
THE STATE OF RAJASTHAN
v.·
REHMAN
(P. B: GAJENDRAGADKAR and K. SuBBA RAo, JJ.)
Criminal Trial-Search by Excise Officer-Failure to record
reasons-Search, if illegal-Central Excise and Salt Act, 1944, (I of
r944), s. I4-Central Excise Rules, r944, r. 20I-Code of Criminal
Procedure, r898, (V of r898), s. r65.
I959
October I4
A Deputy Superintendent of Central Excise, on receiving
information that the respondent had cultivated tobacco but had
not paid excise duty thereon, went to search the house of the
respondent with a view to find out whether he had stored tobacco
there. The respondent obstructed the making of the search with
the result that the Deputy Superintendent fell down and was
injured. The respondent was prosecuted under s. 353, Indian
Penal Code, but was acquitted on the ground that the search was
illegal as it was made by the Deputy Superintendent without
"'--
recording the reasons as required by s. 165, Code of Criminal
Procedure. The appellant contended that s. 165 of the Code was
not applicable to a search under the Central Excise and Salt Act.
Held, that s. 165 of the Code of Criminal Procedure was
applicable to such a search also and the search being in contravention of s. 165 was illegal. Section 18 of the Central Excise and
I959
The State of
Rajasthan
v.
Rehman
992
SUPREME COURT REPORTS [1960(1)]
Salt Act provided that searches under that Act shall ·be carried
out in accordance with the provisions of the Code of Criminal
Procedure.
An excise officer was authorised to make a search
only for the investigation of an offence. Such a search approximated to a search made by a police officer during the course of
investigation of a cognizable offence, and in both cases the search
had to be conducted in accordance with the provisions of s. 165
of the Code.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 39 of 1958. ·
Appeal from the judgment and order dated September 20, 1957, of the Rajasthan High Court Bench, at
Jaipur, in D. B. Criminal Appeal No. 154 of 1956,
arising out of the judgment and order dated the
August 4, 1956, of the Munsiff-Magistrate, Hindaun in
Case No. 313 of 1953,
R.H. Dhebar, for the appellant.
The respondent did not appear.
1959. October 14. Tho Judgment of the Court
was delivered by
Subba Rao J.
SuBBA RAO J.-This is an appeal by certificate
granted by the High Court of Judicature for the State
of Rajasthan, under Art. 134 (l)(c) of the Constitution
against its judgment dated September 20, 1957, confirming that of the Munsif-Magistrate, Hinduan, ~cquit
ting the appellant of the charge under s. 353 of the
Indian Penal Code.
The material facts lie in a small compass. The
Deputy Superintendent of the Central Excise, having
his head-quarters at Bharatpur, received information
that one Sulled and his son, Rehman, the respondent
herein, had cultivated tobacco but had not paid the
excise duty payable thereon. On September 9, 1953,
the Deputy Superintendent, accomyanied by an
Inspector of Central Excise, a sepoy, a chowkidar and
two motbirs, went to the house of Rehman at 2 p.m.,
with a view to search his house to find out whether
he had stored tobacco there. When they declared
their intention to do so, the respondent and one
Dhamman, it is alleged, obstructed the making of the
I•
-1
s.c.it.
SUPR:ffiME COURT REPORTS
993
search ; with the result that the Duputy Superintendent fell down and received some injuries. The
respondent and Dhamman were prosecuted, and the
Munsif-Magistrate, Hinduan, discharged Dhamman
but convicted the respondent under s. 353 of the
Indian Penal Code and sentenced him to undergo
three months' rigorous imprisonment. On appeal,
the Additional Sessions Judge came to the conclusion
that on the material then available the search had
not been conducted in accordance with s. 165 of the
Criminal Procedure Code and remanded the case for
fresh enquiry. On remand, the Munsif-Magistrate
found that the search was made by the Deputy
Superintendent without recording the reasons as he
should under s. 165 of the Criminal Procedure Code
and that the respondent in obstructing him from
making the illegal search did not commit any offence,
and, on that finding, he acquitted the respondent. On
appeal, the High Court agreed with the view expressed by the Munsif-Magistrate and confirmed the order
of acquittal. The State of Rajasthan preferred the
present appeal questioning the correctness of the
decision of the High Court.
Learned Counsel for the State raised before us two
points: (1) The Central Excise and Salt Act (1 of
1944) (hereinafter called "the Act") and the Rules
framed thereunder (hereinafter called "the Rules")
and the Criminal Procedure Code (hereinafter called
"the Code "), maintain a distinction between the
power to make a search and the manner of .making
it, and collate a specified power with a particular
procedure. As the Deputy Superintendent of the
Central . Excise, in the present case, exercised his
power to . make a search only to gather information
about the quantity of tobacco stored in the house of
the respondent for Imposing excise duty on the said
article and not to make any investigation with a view
A
to prosecute the respondent, the mode of search
prescribed under s. 103 of the Code which applies
generally to all searches, has to be followed and not
that provided under s. 165 of the Code which applies
to a search made by a police officer during· the
z959
Tht Stale <>f
Rajaslkan
v.
Rehman
SubbaRa<>].
1959
The State of
Rafasthan
v.
Rehman
Subba Rao j.
994
SUPREME COURT REPORTS
[1960(1)]
investigation of an offence.
(2) Assuming that s. 165
of the Code applies, the said section confers a power
or jurisdiction on a police officer to make a search and
prescribes the procedure to be followed in making the
search. The recording of the reasons relates to jurisdiction and therefore the excise officer, who has
already derived his power to make the search under
r. 201 of the Central Excise Rules, need only follow
the procedural part of s. 165 of the Code.
The respondent's counsel has not appeared before us.
To appreciate the contentions of the learned Counsel for the appella.nt it would be convenient at this
stage to notice the relevant provisions of the Act, the
Rules framed thereunder and the Code.
Under s. 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 the inspection
or 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 r. 201 authorizing 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 the1Rules. There are provisions in the Act and the Rules regulating the production, manufacture and processing of excisable goods,
prescribing a machinery and a procedure for imposing
duties on the said goods, and collection thereof, and, in ~
particular, providing a special procedure for unmanufaetured tobacco in respect of the said matters : see
ss. 3,"6, and 8 of the Act and Ch. IV of the Rules.
Section 9 imposes penalties for the contravention of
.JI.
S.C.R.
SUPREME COURT REPORTS
995
the provisions mentioned therein which include the
provisions regulating the production of excisable _goods
and the supply of any information in respect thereof.
Rule 210 provides that the breach of the Rules shall,
where no other penalty is provided, be punishable
with a penalty which may extend to one thousand
rupees and with confiscation of the goods in respect of
which the offence is committed. It is manifest from
the aforesaid provisions that the officer empowered by
the Central Government can only make a search when
he has reason to believe that excisable goods are pr<?-
cessed, sorted, stored, manufactured or carried in
contravention of the provisions of the Act or the Rules.
The object of the search is, therefore, only to ascertain
whether there is a contravention of the provisions of
the Act or the Rules; and, as we have already noticed,
the contravention of the said provisions is an offence
under the Act. To put it differently, r. 201 enables
the authorized officer to make a search only for tlie
investigation of an offence.
.
Now we shall look at the provisions of the Criminal
Procedure Code to ascertain which of its provisi<?ns
regulating the mode of search are appropriate to the
power conferred on the Deputy Superintendent under
r. 201 of the Rules. In the Criminal Procedure Code
there are four groups of sections regulating the searches
authorised under it. Sections 47, 48, 51 and 52 appear
in Ch. V of the Code which provides for the arrest,
escape and retaking of persons. Section 47 proyides
for the search of a place entered by persons sought to
be arrested; s. 48 for procedure where· ingress is not
obtainable ; and ss. 51 and 52 for the search of the
arrested persons. The second group consists of ss.100,
101, 102 and 103 of Ch. VII of the Code. Section 100
deals with the search for persons wrongfully confined,
and the other sections are general provisions relating
to search warrants, duties of pei:sons in charge of
closed places and the requisitioning of persons to witness searches. Section 153 forms the third group and
it falls under Ch. XIII of the Code which provides for
the preventive action of the police. Under s. 153, a
police officer can make a. sea.rob withoqt i. warrant for
I959
ThiStal1 of
Rajasthan
v.
Rehman
Subba Rao I
I959
Th• State of
Rajasthan
v.
Rehman
Subba Rao].
996
SUPREME COURT REPORTS [1960(1J1
the purpose of inspecting or searching for any weights
or measures or instruments for weighing used or kept
within the limits of his station, if he has reason to
believe that the weights etc. are false.
The fourth
group of sections appear in Ch. XIV which provides
for searches by a police officer during the investigation
of a cognizable offence. The power of search given
under this chapter is incidental to the conduct of
investigation the police officer is authorized by law to
make. Under s. 165 four conditions are imposed: (i)
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 than by making a search, without undue delay ; (ii) he should record in writing the
grounds of his belief and speci(y in such writing as far
as possilile the things for which the search is to be
made; (iii) he must conduct the search, if practicable,
in person; and (iv) 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 authorize
a subordinate officer to make the search after specifying in writing the place to be searched, and, so far as
possible, the thing for which search is to be made. As
search is a process exceedingly arbitrary in character,
stringent statutory conditions are imposed on the
exercise of the power. A comparative study of the
aforesaid provisions with the provisions of r. 201 of the
Rules indicates that searches made by a police officer
during the course of an investigation of a cognizable
offence can properly be approximated with the searches
to be made by the authorized officer under r. 201 of
the Rules; for, in the former case, the police officer
makes a search during the investigation of a cognizable offence arid in the latter the authorized officer
makes the search to ascertain whether a person contravened the provisioi:is of the Act or the Rules which is
an offence. There is also no reason why conditions
should be imposed in the matter of a search by the
police officer under s. 165 of the Code, but no such
safe-guard need be provided in the case of a search by
the excise officer under the Rules. We think that the
,•
}
S.C.R.
SUPREME COURT REPORTS
997
legislature, by stating in s. 18 of the Act that the
searches under the Act and the Rules shall be carried
out in accordance with the provisions of the Code rela.-
ting to searches, clearly indicated that the appropriate
provisions of the Code shall govern searches authorized
under the Act and the Rules. We therefore hold that
the provisions of s. 165 of the Code must be followed
in the matter of searches under r. 201 of the Rules.
There are no merits in the second contention either.
The recording of reasons does not confer on the officer
jurisdiction to make a search, though it is a necessary
condition for making a search. The jurisdiction or
the power to make a search is conf Prred by the statute
and not derived from the record of reasons. That
apart, s. 18 of the Act in express terms states that
searches shall be carried out in accordance with the
provisions of the Code of Criminal Procedure. Section
165 of the Code lays down various steps to be followed
in making a search. The recording of reasons is an
important step in the _matter of search and to ignore
it is to ignore the material part of the provisions
governing searcheei. If that can be ignored, it cannot
be said that the search is carried out in accordance
with the provisions of the Code of Criminal Procedure:
it would be a search made in contravention of the
provisions of the Code.
For the reasons mentioned, we hold that the search
made by the Deputy Superinteadent in the present
case in contravention of the provisions of s. 165 of the
Code was illegal.
Even so, the learned Counsel attempted to argue
that even if the reasons were not recorded by t.he
Deputy Superintendent, it was only an irregularity
and the respondent had no right to prevent the officer
from making the search. This contention has not been
raised till now and we are not justified to allow it to
be raised before us for the first time.
In the r.esult, we agree with the conclusion arrived
at by the High Court and dismiss the appeal.
Appeal dismissed.
u6
r959
The State of
Ra;asthan
v.
Rehman
Subba Rao J.