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TMI Blog1962 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... med the order of the Assistant Collector, Central Excise, Kozhikode, under Ext. P3. 5.These are, as I mentioned earlier, the two orders that are challenged in this writ petition. 6.Before I go into the contentions raised on behalf of the petitioner by his learned Counsel, Mr. M.I. Joseph, I will set out a few facts which will show the circumstances under which action was taken by the Central Excise authorities as against the petitioner. 7.The Department appears to have received anonymous letters to the effect that the petitioner was evading payment of excise duty. On the basis of these letters, the preventive team, assisted by the local Central Excise officers searched the premises of the petitioner on 27-1-1960. Admittedly, no irregularities were noticed in the premises, where the petitioner was carrying on his oil business. But a godown situated very near the premises in question, was also searched and, according to the Department, 136 tins of cocoanut oil and 6 tins of sediment, in all, 142 tins, were found in the said godown, which also had a false name-board outside. 8.According to the department, the petitioner, at about the same time on the same date viz., 27-1-1960, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from him under threat and coercion, and that the said statement cannot be used against the petitioner. No doubt, he also reiterates that he is not guilty of the offences for which he was charged viz., under Rules 9 and 52-A of the Central Excise Rules. 14.The Assistant Collector of Central Excise, Kozhikode heard the matters and by his order dated 14-4-1960 viz., ext. P3, ultimately imposed the penalty and also passed the order of confiscation. 15.Ext. P3 sets out the circumstances under which the search had to be conducted in the godown adjoining the Mills of the Petitioner. It is also stated that the managing partner of the petitioner was present, and he himself produced the key of the said godown, no doubt, a little later, and the godown was opened in the presence of the managing partner, and the said godown, which according to the Department, contained a false name-board, was found to contain 142 tins, out of which 136 contained cocoanut oil and the rest sediment. The weight of these articles has already been given above. 16.The Assistant Collector also refers to the fact that the officers who conducted the search, seized the tins of cocoanut oil, and also refers to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to the seizure of 136 tins of cocoanut oil and 6 tins of sediment from the godown. The Collector also refers to the statement, which, according to him,was freely and voluntarily given by the petitioner on 27-1-1960, admitting ownership of the 142 tins as well as admitting the fact that those goods have been transferred from his mills to that place and that in respect of those goods the petitioner has not paid excise duty. 25.The Collector then emphasises that the petitioner has been found guilty of contravening Rules 9(1) and 52-A of the Central Excise Rules. 26.After referring to the order of the Assistant Collector viz., Ext. P3, the Collector refers to his own order Ext. P4 and stated that as there was no merit in the petitioner's appeal, it was dismissed. 27.Then the Collector refers to the circumstances that at the time of the seizure of the search, no accounts or bills, in respect of the purchase of any village ghani oil relating to the 142 tins, were found in the Mills or the said godown, and that the petitioner also did not produce any account books or bills in respect of the alleged purchase when he submitted the explanation Ext. P1 to the show-cause notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, at any rate, regarding the matters mentioned in Ext. R-2. 33.On the other hand, the learned Government Pleader, has urged that the mere circumstances that there is an irregularity or some illegality committed in the matter of the search conducted by the Excise authorities does not land to the further conclusion that the entire proceedings taken on the basis of that search, which has, no doubt, resulted in imposing a penalty on the petitioner, is also illegal. The learned Government Pleader also urged that, notwithstanding the irregularity or infirmity, if any, in the matter of the search, the further proceedings can be sustained, and, on that ground the orders Exts. P-3 and P-4 do not require any interference by this Court because they can very well stand notwithstanding any slight infirmity, which may attach to the search. 34.The learned Government Pleader further urged that there is no question of any violation of Article 20(3) of the Constitution coming into the picture at all. He also urged that in this case at the time the statement Ext. R-2 was recorded from the petitioner on 27-1-1960 one of the essential requisites for invoking the provisions of Article 20(3) vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his not having had opportunity to adduce evidence, was raised. It is only after a consideration of all the material factors, the learned Government Pleader urged, that the Assistant Collector held the petitioner guilty of the rules in question. 38.Before I consider the major contention raised by Mr. M. I. Joseph, learned Counsel for the petitioner, based upon the violation of Section 165 of the Code of Criminal Procedure, read with Section 18 of the Central Excises and Salt Act, as also the violation of Article 20(3) of the Constitution, I can well dispose of the minor contention raised by the learned Counsel, to which I have already made reference. 39.I am not inclined to accept the contention of the learned Counsel for the petitioner that there has been a denial of opportunity to his client for adducing any evidence in respect of any matter that he wanted. On the other hand, it is seen that the petitioner had asked for a personal hearing, and that was admittedly given, as will be seen from Ext. P3. That order will also show that the petitioner was represented by counsel, and he has also filed a full and complete statement. No doubt, in the grounds given in the affidavit file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt to controvert either the fact of his having given Ext. R2 or regarding the truth of the statements contained therein, till he sent his reply on 22-2-1960 to the Show-cause notice received by him on 17-2-1960. 43.If really the petitioner had a genuine grievance about the circumstances under which, he now stresses before me, Ext. R2 was taken from him under duress or coercion, there was certainly a duty on his part, the moment the undue influence or coercion ceased to exist, or at any rate, as early as convenient, or late in the day on 27-1-1960, to make a grievance of it at the earliest occasion possible. Therefore, there is considerable force in the aspect that is pressed before me by the learned Government Pleader that this case of Ext. R2 having been taken from the petitioner under undue influence, threat or coercion, cannot certainly be accepted by this court in proceedings under Article 226 of the Constitution. 44.The question of corroboration regarding Ext. R2, in my view, also does not assume much importance or significance in this particular case. No doubt, Mr. M. I. Joseph, learned Counsel for the petitioner urged that the petitioner being in the position of an accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aspect also is considered by the Assistant Collector, and it is after a consideration of as many as seven factors, one of those factors being, no doubt, the statement given by the petitioner on 27-1-1960 viz., Ext. R. 2 that the Assistant Collector has ultimately come to the conclusion that the plea of the petitioner, that he is not guilty of contravention of Rules 9 and 52-A of the Central Excise Rules, cannot be accepted. Therefore, this, at any rate, is not one of those cases where it can be said that the petitioner has been found guilty exclusively or solely upon the basis of Ext. R. 2. 48.Now, I will consider the two major contentions raised by Mr. M. I. Joseph, learned Counsel for the petitioner. As I mentioned earlier, the first contention is that the search and seizure made on 27-1-1960 are illegal. In this connection the learned Counsel referred me to Section 18 of the Central Excises and Salt Act, 1944. Section 18 is as follows :- "All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898), relating respectively to searche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the entire proceedings taken on the basis of that illegal search, leading up to the final orders namely, Exts. P3 and P4, are illegal and void. The learned Counsel, no doubt, referred me to the decision of the Supreme Court reported in State of Rajasthan v. Rahman (1978 (2) E.L.T. (J294) (S.C.) = A.I.R. 1960 S.C. 210), where Their Lordships had to consider the scope of Section 18 of the Central Excises and Salt Act, 1944, as well as Rule 201 of the Central Excise Rules, 1944, and also Section 165 of the Code of Criminal Procedure. Mr. Justice Subba Rao, speaking for the Court, if I may say so with great respect, after a consideration of the various provisions, is ultimately of the view that a comparative study of the various provisions with the provisions of Rule 201 of the Central Excise Rules, indicates that searches made by a Police officer during the course of an investigation of a cognizable offence, can properly be approximated with the searches to be made by the authorised officer under Rule 201 of the Central Excise Rules. 53.Then the learned Judge winds up the discussion on this point at page 213, as follows : - "We think that the Legislature by stating in Section 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 55.The above Full Bench decision of this High Court has been relied upon by the learned Government Pleader in support of the contention that, even assuming that there is an infirmity or irregularity in the matter of search, inasmuch as it has not been conducted in full compliance with the provisions of Section 165 of the Code of Criminal Procedure the entire proceedings leading up to Exts. P3 and P4 cannot be set aside; nor can it be held to be illegal or void, as contended for by the learned Counsel, for the petitioner. 56.In my view, the contentions of the learned Government Pleader on this aspect have to be accepted. The decision of the Supreme Court has been considered by a Full Bench of this Court, which I have already referred to; and the Full Bench, after referring to the principles laid down by the Supreme Court, has held that the mere circumstance that there is an infirmity of illegality in the matter of non-compliance with the provisions of Section 165 of the Code of Criminal Procedure, will not by itself invalidate the entire proceedings which resulted in the conviction of the party on the basis of the materials discovered in the course of the search. Therefore, notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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