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2013 (8) TMI 787 - HC - VAT and Sales TaxValidity of Search and Seizure - Whether in exercise of powers of search and seizure under Section 54 of the Act strict compliance regarding search and seizure as laid down in Chapter VII Cr.P.C. more precisely Section 100 (4) Cr. P.C. was imperative - Held that - The search team having made an attempt to get independent witnesses but looking to the time of search operation, if two independent witnesses as required were not available the search can not be held to be invalid. This apart, the search had been witnessed atleast by one independent witness of the locality itself and by another who happens to be the salesman of respondent no. 6 - Thus, the authenticity of carrying out the search operation stand established - It was not the case that no search was conducted - The factum of seizure of the holograms and other material had not been denied which clearly leads to an inference that the petitioner was involved in sale of spurious liquor by using fake holograms - Accordingly, the license of respondent no. 6 was rightly cancelled and the said order was not liable to be set aside by the appellate authority on a mere technicality that there was no second independent witness to the search as contemplated by Section 100 (4) Cr.P.C. The argument that the revisional order holding the search to be invalid having become final and therefore there was no occasion to enter into the above controversy is without force - The revisional order was an order of remand directing the first appellate authority to reconsider the matter in the light of observation made in the revisional order. The observations made in the revisional order were to the effect that there does not appear to be sufficient compliance of Section 100 (4) Cr.P.C. and that the compounding aspect as contemplated by Section 74 and 74-A of the Act was left out from consideration - There was no final verdict that the search was invalid for non compliance of provisions of Section 100 (4) Cr.P.C - It was misconceived to contend that the revisional order had expressed any final opinion regarding search - There was no finding by the revisonal authority that the search was invalid or that it cannot form the basis for passing any order in exercise of power under Rule 21 of the U.P. Excise (Settlement of Licenses for Retail Sale of Country Made Liquor) Rules, 2002. The appellate authority was fully empowered to go into the merits of the validity of the search and to pass appropriate orders but the appellate authority had taken a too technical approach in setting aside the order of cancellation of license passed by the District Magistrate/licensing authority for the reason that there was no independent second witness to the search completely ignoring that Section 54 of the Act does makes the provisions of Section 100 (4) Cr.P.C., absolute in its applicability to the search operation under the Act which have to be applied as far as may be depending upon the facts and circumstances and the situation of each case Order set aside.
Issues Involved:
1. Validity of the search and seizure operation under Section 54 of the United Provinces Excise Act, 1910. 2. Compliance with Section 100(4) of the Code of Criminal Procedure (Cr.P.C.). 3. Impact of the appellate and revisional orders on the validity of the search and subsequent cancellation of the license. Issue-wise Detailed Analysis: 1. Validity of the search and seizure operation under Section 54 of the United Provinces Excise Act, 1910: The main legal question in this case was whether the search and seizure operation conducted under Section 54 of the Act required strict compliance with the procedures laid out in Chapter VII of the Cr.P.C., specifically Section 100(4). The court noted that Section 54 stipulates that the provisions of the Cr.P.C. relating to searches shall be applicable "as far as may be" to actions taken under the Act. This phrase implies some flexibility in the application of Cr.P.C. provisions, suggesting that absolute strictness is not mandatory. 2. Compliance with Section 100(4) of the Code of Criminal Procedure (Cr.P.C.): Section 100(4) Cr.P.C. mandates that the officer conducting a search must call upon two or more independent and respectable inhabitants of the locality to witness the search. In this case, the search was conducted at night when no independent witnesses were readily available. The search team included Deva Tiwari, a local shop owner, and Arvind Kumar Singh, the salesman of the licensee, as witnesses. The court acknowledged that the search team made an effort to procure independent witnesses but found none available at that time. The court cited several precedents, including Sundar Singh vs. State of U.P. and Shyam Lal vs. King Emperor, to support the view that non-compliance with Section 100(4) Cr.P.C. does not necessarily invalidate the search if it was impractical to find independent witnesses. 3. Impact of the appellate and revisional orders on the validity of the search and subsequent cancellation of the license: The original order canceling the license was based on the material seized during the search. However, the appellate authority set aside this cancellation on the grounds of non-compliance with Section 100(4) Cr.P.C. The revisional court remanded the matter to the appellate authority to reconsider the compliance with Section 100(4) Cr.P.C. and the provisions of Section 74 and 74-A of the Act. The appellate authority, upon remand, invalidated the search due to the absence of a second independent witness. The court found this approach too technical and emphasized that the provisions of Section 100(4) Cr.P.C. are not absolute under Section 54 of the Act. The court concluded that the search was valid despite the absence of two independent witnesses, as the search team made reasonable efforts under the circumstances. Conclusion: The court quashed the impugned appellate order dated 19.7.2011, reinstating the cancellation of the license. It held that the search operation was valid despite the technical non-compliance with Section 100(4) Cr.P.C., given the practical difficulties in procuring independent witnesses at the time of the search. The writ petition was allowed, underscoring the flexibility in applying Cr.P.C. provisions to searches under the Excise Act.
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