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TMI Blog2013 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid operation the stock register was not found; two bundles of fictitious holograms weighing about 1 kg. were seized; a bottle with two litres of country made liquor having concentration of 31.7% VV; and 115W wrappers/labels of Karina brand country made liquor etc., were found and taken into custody. The said search and seizure operations were carried out in the presence of one Deva Tiwari, son of Putain Tiwari, the owner of the sweet shop in the vicinity and in the presence of Arvind Kumar Singh, the salesman of respondent no. 6. On the basis of the material seized during search operations, the authorities after a show cause notice and on consideration of the reply of respondent no. 6 thereto passed an order dated 28th February 2011 cancelling the license of respondent no. 6. The appeal of respondent no. 6 against the aforesaid order was dismissed on 9.3.2011 but in revision the matter was remanded to the appellate authority for reconsideration. On remand, the impugned order has been passed allowing the appeal and setting aside the cancellation order. In the meantime as the license of respondent no. 6 was cancelled an advertisement was issued for resettlement of the said s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Standing counsel on the other hand submitted that once the matter had been remanded, the entire controversy stood re-opened. Section 54 of the Act stipulates that the provisions of Cr.P.C., relating to searches shall be applicable, "as far as may be" to all action taken in that respect under the Act. Section 54 of the Act reads as under:- 54. Procedure relating to arrest, searches etc-. " The provision of the [Code of Criminal Procedure, 1973] relating to arrests, searches, search warrants, production of persons arrested and investigation into offences shall be applicable so far as may be, to all action take in these respects under this Act:" The use of expression "as far as may be" are relevant and play an important role in deciding this matter. The procedure for search and seizure is provided under Chapter VII of the Code of Criminal Procedure. The relevant provision is contained in Section 100 Cr.P.C. One of the conditions for search as contained in the above Chapter viz. Section 100 Cr.P.C. is that the officer or the person making a search shall call upon two or more independent and respectable inhabitants of the locality to attend and witness the search. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the courts below were not respectable inhabitants of the locality would not invalidate the search. In Shyam Lal Vs. King Emperor AIR 1927 Alld. 516 His Lordship in considering the provisions relating to search and seizure contained in the erstwhile Cr.P.C. in the light of the expression "so far as it may be" held that the provision of clause 4 of Section 165 of having two independent witnesses during search is not imperative and therefore the search under the circumstances of that case was held to be perfectly illegal. In Durand Didir Vs. Chief Secretary Union Territory of Goa AIR 1989 SC 1966 the argument was that two witnesses to the search under the Narcotics Drugs and Psychotropic Substance Act were not respectable inhabitants of the locality and therefore the search is invalid. Their Lordships negativing the argument held that as the search was done in the mid night and that the witnesses were not outsiders but resident of the locality, there is no deliberate intention to violate the statutory safeguard provided in carrying out the search. It was practically impossible to take two independent inhabitants of the locality as witness at that point of time. The search was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho happens to be the salesman of respondent no. 6. Thus, the authenticity of carrying out the search operation stand established. It is not the case that no search was conducted. The factum of seizure of the holograms and other material has 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 dated 26.6.2011 is 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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