1983 (3) TMI 53 - HC - Central Excise

Search without warrant Penalty may be lenient if accused had suffered a lengthy trial Search illegal

Summary

Issues Involved:
1. Legality of the search and seizure.
2. Admissibility of confessional statements.
3. Applicability of Section 9 of the Central Excises and Salt Act, 1944.
4. Sentencing considerations for first-time offenders.

Issue-Wise Detailed Analysis:

1. Legality of the Search and Seizure:
The trial court held that the search conducted by the Central Excise Department was in contravention of Sections 103 and 165 of the Criminal Procedure Code (Crl. P.C.), rendering the search and consequent seizure illegal. The trial judge relied on the decision in K.L. Subbayya v. State of Karnataka, which emphasized the necessity of recording reasons for the search and obtaining a warrant from the jurisdictional Magistrate. The High Court acknowledged that the searching party did not record such reasons and failed to provide a satisfactory explanation for not obtaining a warrant, thus agreeing with the trial court's view on the illegality of the search.

2. Admissibility of Confessional Statements:
Despite the illegality of the search, the High Court found ample evidence to support the prosecution's case. The evidence included the oral testimonies of the Assistant Collector (PW 1) and Excise Inspector (PW 2), the joint confessional statement (Ex. P-3), and the individual confessional statements of A-2 (Ex. P-7 and Ex. P-8). The court found these statements to be natural, believable, and consistent, proving beyond doubt that the firm had manufactured 6150 sarees, including the 1604 sarees seized, without paying excise duty and without obtaining the necessary gate pass.

3. Applicability of Section 9 of the Central Excises and Salt Act, 1944:
The High Court concluded that the accused had committed offenses under Sections 9(i)(a), 9(i)(b), 9(i)(bb), and 9(i)(bbb) of the Central Excises and Salt Act, 1944. The court noted that the accused were found in possession of sarees knowing they were liable to be confiscated under the Act. The trial court's reliance on the Supreme Court's decision in K.L. Subbayya was overruled by subsequent judgments, such as State of Maharashtra v. Natwarlal Damodardas Soni, which held that even if a search is illegal, it does not affect the validity of the seizure and subsequent investigation.

4. Sentencing Considerations for First-Time Offenders:
The defense argued for leniency, citing that this was the first offense of the accused and that they had already paid a penalty. However, Section 9(3)(i) of the Act states that a first-time conviction cannot be considered a special reason for awarding a lesser sentence. The court also noted that the age of the accused and the payment of penalties should not influence the imposition of a lesser sentence. Nevertheless, considering the prolonged duration of the case (since 1976) and the mental strain on the accused, the court decided that imposing a fine would meet the ends of justice.

Judgment:
The High Court set aside the trial court's judgment of acquittal and allowed the appeal. Each of the accused was convicted of offenses under Sections 9(i)(a), 9(i)(b), 9(i)(bb), and 9(i)(bbb) of the Central Excises and Salt Act, 1944. Each accused was sentenced to pay a fine of Rs. 250 or, in default, to undergo simple imprisonment for one month, in respect of all the offenses put together.