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TMI Blog1982 (8) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequent trial of the case. 2. On a complaint filed by the Assistant Collector of Central Excise of the Integrated Divisional Office, Trivandrum, ten accused, including the respondents herein-who are respectively accused Nos. 1, 2 to 4 and 9, were tried by the Additional Judicial Magistrate of the First Class, Trivandrum, for an offence punishable under Section 135 of the Act, on the allegation that they acquired possession of the following articles of foreign origin, viz., (1) Cabin-All 8' Cinema Projector. Sl. No. 128323-Made in Japan; (2) Car Cassette stereo player kasuga Model K.C. 9316-Made in Japan; (3) Cassette car Stereo with AM. Radio- Model No. NR. 201A-S1. No. 0397-2.F-Made in Japan; and (4) Two motorcycles-Suzuki-Made in J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement, Ext. P7. 3. Accused Nos. 5 to 8 and 10 were absconding and therefore the case against them was split up and the case against the remaining accused were proceeded with. 4. The plea of the accused persons were one of complete denial and they had no witness to be examined, although Exts. B1 to B3 were marked on their side. 5. The learned Magistrate, holding that the search conducted was illegal as the prosecution failed to produce the authorisation issued by the Assistant Collector, and in view of the fact that the search was illegal the presumption under Section 123 of the Act will not apply to the case, acquitted the accused. 6. This order of acquittal is strongly assailed by the learned Additional Central Government Standi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relating to the seizure or recovery of the alleged contraband articles has also not been duly analysed and independently considered by the trial court. Although there is the evidence of other witnesses in the case, that the authorisation issued by the Assistant Collector for conducting the search was shown to the sons of accused Nos. 2 and 3 and accused No. 4 at the time of the search, this authorisation has not been produced in court. It cannot be said for certain that the authorisation of the nature referred to is one which could be taken judicial notice of. Counsel for the appellant submitted that this authorisation was unnecessary as these officers who conducted the search had already been empowered under Section 152(b)of the Act by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two consequences no further consequence ensues". In Shyam Lal v. State of Madhya Pradesh (AIR 1972 S.C. 886), the Supreme Court observed that even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases to have any application out to the subsequent steps in the investigation. In a still later decision in State of Kerala v. Alasserry Mohammed (AIR 1978 SC 933), the Supreme Court negatived a plea that a failure on the part of the Food Inspector to comply with strictly the statutory provisions would vitiate the trial and conviction of the respondent. These decisions were referred to and approved by the Supreme Court in a recent case, State of Maharashtra v. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution. As already stated, the illegality of search by itself cannot and will not vitiate the seizure of the articles. If in spite of the fact that search was illegal, the evidence regarding seizure of the contraband articles is found to be acceptable, there is no reason why Section 123 of the Act should not be invoked. 9. Although it is not seriously disputed that it was mainly on the ground of illegality of search that the accused were acquitted, the counsel appearing for the fourth accused submitted that there is absolutely no evidence against his client, that the trial court has found his client not guilty of the offence, and therefore, the order of acquittal of the fourth accused must be upheld. 10. On going through the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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