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TMI Blog1985 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... in his jurisdiction. On 24-8-1971 he had gone to Mirzapur for surprise checking. On 25-8-1971 at 4.30 p.m. while patrolling on the road he found that some copper alloys circles were being carried on a cart from the rolling mills of Bihari Lal. Ram Prasad Upadhya (P.W.3), the Jamadar of the said rolling mill was accompanying the said cart. The Inspector (P.W. 1) stopped the said cart for the purposes of checking and demanded Gate-Pass from them. The cart-pullers handed over the Gate-pass to the said inspector who found that although the name of Amar Nath consignee was mentioned therein, yet his full address was missing. His address could not be supplied by the cart-pullers or the Jamadar (P.W.3). They also could not tell him where they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him so he should approach the higher authorities for getting them released. Lavkush Kumar, accused-respondent told the Inspector (P.W. 1) to wait for about ten minutes so that he could bring his father. Saying so Lavkush Kumar, accused-respondent left on his motorcycle. 3. The Inspector (P.W. 1) apprehending use of force on the part of. Lavkush Kumar, accused-respondent sent B.P. Misra, Inspector (P.W.2) to the Kotwali for police aid. He left for Kotwali. 4. In the meanwhile, Hari Mohan Prasad, Inspector (P.W. 1) remained sitting on the Gaddi of the firm where the alloys circles were weighed by him. At about 9.45 p.m. Lavkush Kumar, Dhan Prasad and Ghanshyam Das the three accused-respondents arrived there with 10 or 12 persons and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the day of occurrence, the alloys circles in question were sent by Lavkush Kumar, accused-respondent on a correct Gate-pass. It was further pleaded that the Inspector Hari Mohan Prasad (P.W. 1) was inimical towards the accused-respondents who filed a complaint against him much earlier to the occurrence in question. The Inspector (P.W. 1) was harassing them so they had filed a writ petition before the High Court seeking relief against the conduct of the said Inspector (P.W.1). They had also complained against the said Inspector (P.W.1) to the Central Government. It was contended that the accused-respondents were falsely implicated in the case due to enmity. However, they did not give any evidence in defence. 8. The prosecution examined i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solitary statement of Hari Mohan Prasad, inspector (P.W.1) regarding the incident in question touching the offence charged against the accused-respondents. The said solitary statement in the above background of enmity has to be scrutinised with great caution. 11. According to the Inspector (P.W.1) he had seized the alloys circles in question and once the seizure had taken place, he was in lawful possession of the goods and as such if they were taken out of his possession forcibly, then the accused-respondents were guilty of the offences charged i.e. under Ss. 395 and 353, I.P.C. 12. The whole question, therefore, depends as to whether there had been seizure of the goods or not? The factum of seizure has to be proved as a fact. For this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be made. The provisions of S. 165, Cr. P.C. are mandatory. Their non-compliance renders his action of carrying out search illegal. 17. In the present case, no such writing was recorded by Hari Mohan Prasad, Inspector (P.W.1). The seizure-list was also not prepared. Accordingly, the seizure has not taken place. The goods had not come into his possession legally. At best it can be said that he had detained those goods for investigation, the said detention was also illegal for want of the non-recording of the reasons as discussed above. 18. In this background even if it be presumed that the overt acts assigned to the accused-respondents by -the prosecution were there, yet they had every right in self-defence of their property to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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