Allahabad High Court
Mithai Lal vs State Of U.P. & 2 Others on 18 April, 2018
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 27 A.F.R. Case :- WRIT - C No. - 42324 of 2015 Petitioner :- Mithai Lal Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Syed Wajid Ali Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.
2. The petitioner was fair price shop dealer of Village Panchayat Baijnathpur, Birdpur No.12. A show cause notice was issued to the petitioner on 3.12.2013 asking him to show cause regarding the discrepancies in the records and shortages of food grains which came to light during inquiry. The stock available in the fair price shop was 99.32 quintal of wheat and 88.50 quintal of rice as against 120.48 quintal of wheat and 142.95 quintal of rice which were lifted by the petitioner. The petitioner was required to explain the aforesaid shortages and reconcile the said discrepancies in the documents.
3. The petitioner submitted a reply to the show cause notice on 10.12.2013. The fair price shop of the petitioner was terminated on 27.12.2013. The petitioner carried the order of termination in appeal before the appellate authority. The appeal was registered as Appeal No.-C201417000045, Mithai Lal Vs. S.D.M. Navgarh. The appeal was dismissed by order dated 14.7.2015.
4. The petitioner being aggrieved by the aforesaid orders has assailed the order dated 27.12.2013 passed by the S.D.M. terminating his license and the order dated 14.7.2015 passed by the appellate court rejecting his appeal.
5. Sri Syed Wajid Ali, learned counsel for the petitioner submits that the petitioner had submitted a satisfactory reply to the shortages of essential commodities alleged in the show cause notice. It was also contended that the search of the premises was made by an Officer, who was not competent to do so hence the entire proceeding initiated against the petitioner stands vitiated. He relied upon the judgment rendered by this court in case of Arif Khan Vs. State of U.P. and others reported in 2018 (138) RD 20.
The relevant para is extracted hereunder:-
"7. It is apparent from the record that the fair price shop of the petitioner was inspected by the Supply Clerk of Nanpara without any authority and on the basis of its inquiry report, the licence of fair price shop in question was first suspended and thereafter without giving copy of inquiry report and without giving opportunity of hearing to the petitioner, the licence of his fair price shop was cancelled."
6. Per contra the learned Standing Counsel submits that the orders passed by the authorities below are speaking orders, passed after due application of mind to the facts in the record. This court cannot sit in appeal over fact finding authorities. It was also contended that even for the sake of arguments if it is accepted that the search was conducted by an Officer not competent to do so it will not render the entire proceeding invalid.
7. Having heard the learned counsel for the parties and perused the record certain facts, which are essential for the judgment in the case are beyond the pale of dispute and established beyond doubt.
8. Though the matter relates to a search under the income tax the fundamental principles of law relating to the admissibility of material and information extracted in an illegal search can be judicious applied to the facts of this case.
09. The Naib Tehsildar in the course of an inquiry into the affairs of the shop of the petitioner visited the site of the shop on 12.12.2013. The petitioner was not present in the shop. The son of the petitioner was present at the shop at the time of the visit of the Naib Tehsildar. The son of the petitioner, Ramesh, responded to the queries made by the Naib Tehsildar in the course of such investigation. The said Ramesh cooperated with the Naib Tehsildar and joined the inquiry proceedings. He did not resist the enquiry. The son of the petitioner also gave his statement to the Naib Tehsildar. He asserted that he was running the shop and tried to reconcile the shortages in the essential commodities which showed up at the time of inspection. It is borne out from the record that Ramesh also conducted the aforesaid enquiry. The Naib Tehsildar to the godown/site where the food grains were stored. The conclusion of the inquiry the shortages in the good grains stood confirmed. The explanation submitted by the son of the petitioner failed to account for the irregularities. The deficiencies in the food grains revealed during the course of the aforesaid inspection became the subject matter of the show cause notice issued to the petitioner on 3.12.2013. The petitioner submitted his reply to the show cause notice on 10.12.2013. In reply the petitioner stated that the food grains which were found short were in fact stored in another room which was not inspected by the Naib Tehsildar. The petitioner distanced himself from his son and contended that he had separated from his son since the past 13 years. He disowned the explanation tendered by his son. The documents relating to the shop which were in custody of the Naib Tehsildar were not disputed.
10. The licensing authority considered the reply of the petitioner in detail. The sheet anchor of the defence of the petitioner was that the son of the petitioner had separated from him and was not concerned with the affairs of the shop since the past 13 years. This explanation was disbelieved by the licensing authority. The written statement of Ramesh Kumar son of the petitioner was given voluntarily to the Naib Tehsildar. The said Ramesh Kumar never retracted his statement. In his statement Ramesh Kumar admitted to running the shop, and also stated that the petitioner could not do so due to old age. The said Ramesh Kumar could not provide any credible explanation for the shortage in the stocks. He conducted the Naib Tehsildar around the premises. In fact the said Ramesh Kumar in his statement submitted that the food grain which was found short was infact not lifted. This fact was found to be false. The records of the authorities attested to the fact that the food grains had in fact been lifted. The attempt of the petitioner to distance himself from the statement of the petitioner was clearly disbelieved and rejected by S.D.M., Navgarh. The defence of the petitioner thus collapsed. The licensing authority thereupon returned the finding that the petitioner had failed to account for the huge shortages of the food grains which was a mal practice, serious enough to warrant termination of his license. The licensing authority also took the next logical step and terminated the license of the petitioner on 27.12.2013.
11. The petitioner in his memo of appeal reiterated the stand made in the reply of the petitioner to the show cause notice. The appellate authority independently applied its mind to the grounds raised in the memo of the appeal and explanation of the petitioner. The defence of the petitioner was based upon distancing himself from the stand taken by his son was rejected. The plea of the petitioner to distance himself from his son and impeach the credibility of his statement was rejected by the appellate authority as well. The appellate authority on the contrary upheld the findings of Inquiry Officer.
12. Great weight has been laid on the fact that there was no shortage at the site. The food grains was in fact stored in an adjacent room. The son of the petitioner was not aware of the affairs of the shop hence could not conduct the Naib Tehsildar to the aforesaid room. This defence of petitioner was disbelieved by both the authorities below in clear findings of fact.
13. Both the fact finding authorities have returned findings of fact and have discarded the attempt of the petitioner to distance himself from his son and impeach his credibility. The attempt of the petitioner to remove the son from the affairs of the shop was not accepted by the authorities. The findings show that the said defence was an after thought.
14. These are a findings of fact and this court is not a court of appeal. No perversity has been shown in the aforesaid findings of fact. The explanation that the food grains were stored in adjacent room was equally an after thought which was rightly rejected by the authorities below.
15. The next submission of the learned counsel for the petitioner is that the search of the premises could not be conducted by the Naib Tehsildar. Even for the sake of argument if it is accepted that the search was conducted by an Officer not competent to do so it will not bring any difference to the fate of the petitioner. The statement of the son of the petitioner and the explanation made by him was found inadequate. This was corroborated by the documents. The same is sufficient to return the charges of mal practice. The information prised out during inquiry can be utilised by the authorities. Moreover, the same is corroborated by the other evidence. The such conclusions do not stand vitiated even if search was conducted by an Officer not competent to do so.
16. The courts in India have consistently declined to exclude material evidence only on the ground that it was a healed of illegal search and seizure. In the case of Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Ors. reported at 1974 (1) SCC 345. The Hon'ble Supreme Court consider the worth and utility of law priesed out in illegal search. The Hon'ble Court held thus :-
"24. As to the argument based on "the spirit of our Constitution", we can do no better than quote from the judgment of Kania, C. J. in A. K. Gopalan Vs. The State of Madras 1950 CriLJ1383 "There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority." Now, if the Evidence Act 1871 which is a law 'Consolidating, defining and amending the law of evidence, no provision of which is challenged as violating the Constitution permits relevancy as the only test of admissibility of evidence (See section 5 of the Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence, on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. In M. P. Sharma Vs. Satish Chander, already referred to, a search and seizure made under the Criminal Procedure Code was challenged as illegal on the ground of violation of the fundamental right under Article 20(3), the argument being that the evidence was no better than illegally compelled evidence. In support of that contention reference was made to the Fourth and Fifth amendments of the American Constitution and also to some American cases which seemed to hold that the obtaining of incriminating evidence by illegal seizure and search tantamounts to the violation of the Fifth amendment. The Fourth amendment does not place any embargo on reasonable searches and seizures. It. provides that the right of the people to be secure in their persons, papers and effects against unreasonable searches and seizures shall not be violated. Thus the privacy of a citizen's home was specifically safeguarded under the- Constitution, although reasonable searches and seizures were not taboo. Repelling the submission, this Court observed at page 1096. "A power of search and seizure is in any system of jurisprudence in overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy,. analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches." It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.
25. So far as India is concerned its law of evidence is modeled on the rules of evidence, which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose and Others Vs. Emperor I.L.R. 37 Cal 467 the learned Chief Justice Sir Lawrence Jenkins says at page, 500 : "Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common-sense observes-"a fact cannot be altered by 100 texts," and as his commentator quaintly remarks : "If a Brahmana be slain, the precept 'slay not a Branmana' does not annul the murder." But the absence of the precautions designed. by the legislature lends support to the argument that the alleged discovery should be carefully scrutinized." In Emperor V. Allahdad Khan 35 Allahabad, 358 the Superintendent of Police and a Sub-Inspector searched the house of a person suspected of being in illicit possession of excisable articles and such articles were found in the house searched. It was held that the conviction of the owner of the house under section 63 of the United Provinces Excise Act, 1910, was not rendered invalid by the fact that no warrant had been issued for the search, although it was presumably the intention of the legislature that in a case under section 63, where it was necessary to search a house, a search warrant should be obtained beforehand. In Kuruma v. The Queen 1955 A.C.197 where the Privy Council had to consider the English Law of Evidence in its application to Eastern Africa, their Lordships propounded the rule thus : "The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained." Some American cases were also cited before the Privy Council. Their Lordships observed at p. 204 thus "Certain decisions of the Supreme Court of the United States of America were also cited in argument. Their Lordships do not think it necessary to examine them in detail. Suffice it to say that there appears to be considerable difference of opinion among the judges both in the State and Federal courts as to whether or not the rejection of evidence obtained by illegal means depends on certain articles in the American Constitution. At any rate, in Olmstead v. United State (1828) 277 U.S. 438, the majority of the Supreme Court were clearly of opinion that the common law did not reject relevant evidence on that ground." In Kuruma's case, Kuruma was searched by two Police Officers who were not authorised under the law to carry out a search and, in the search, some ammunition was found in the unlawful possession of Kuruma. The question was whether the evidence with regard to the finding of the ammunition on the person of Kuruma could be shut out on the ground that the evidence had been obtained by an unlawful search. It was held it could not be so shut out because the finding of ammunition was a relevant piece of evidence on a charge for unlawful possession. In a later case before the Privy Council in Herman King v. The Queen 1969 (1) A.C. 304 which came on appeal from a Court of Appeal of Jamaica, the law as laid down in Kuruma's case was applied although the Jamaican Constitution guaranteed the constitutional right against search and seizure in the following provision of the Jamalca (Constitution) Order in Council 1962, Scheduled 2, Section 19 "(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. "(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required .... for the purpose of preventing or detecting crime. . . ." In other words, search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the appellant by a Police Officer was not justified by the warrant nor was it open to the Officer to search the person of the appellant without taking him before a Justice of the Peace. Nevertheless it was held that the Court had a discretion to admit the evidence obtained as a result of the illegal search and the constitutional protection against search of person or property without consent did not take away the discretion of the court. Following Kuruma v. The Queen the court held that it was open to the court not to admit the evidence against the accused if the court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play.
It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.
26. In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of section 132 of the Income Tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be therefore, held that the High Court was right 'in dismissing the two Writ Petitions. The appeals must also fail and are dismissed with costs."
17. It would now be imperative to consider the issue of the procedure adopted by the authorities below in entering the orders impugned. No specific instances of procedural impropriety was pointed out by the learned counsel during his arguments or has been pleaded in the writ petition. It is stated in paragraph 14 of the writ petition that the order of termination of the license was passed without affording opportunity of hearing. The assertion on its very face is self contradictory and inconsistent with the admitted record of the case. The petitioner was issued a show cause notice on 3.12.2013. The petitioner has submitted a reply to the show cause notice. He has not stated any where before the initial authorities that the orders were passed in violation of principles of natural justice or he was being denied a fair opportunity of hearing. On the contrary the record established that the orders passed by the authorities below were in consistent with principles of natural justice and the petitioner was afforded fair opportunity of hearing.
18. In the light of this finding the judgement relied by the learned counsel for the petitioner is not applicable to the facts of this case.
19. The findings made by the authorities have been returned after due application of mind and based on the material in the record. The findings have been arrived at by process of impeccable reasoning and flawless logic. The findings of the authorities do not suffer from any perversity and no arbitrariness could be pointed out on behalf of the petitioner.
20. The writ petition stands dismissed.
Order Date :- 18.4.2018 Pramod