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T.N.R. Tirumalpad, J.C.

1. The petitioners were convicted by the first class magistrate, Sadar under Section 353, I.P.C. and each of them sentenced to undergo R.I. for 6 months. In the appeal to the Sessions Judge, their conviction was confirmed but their sentence was reduced to 2 months' R.I. each. Now they have come up in revision.

2. On 16-7-59 at about 8 P.M., P.W. 1 N.R. Datta, an Inspector of Land Customs, Preventive; Unit along with P.W. 2, a Sub-Inspector of Land Customs and a Peon, Ajit Das were patrolling in the Arundhutinagar area in the course of their preventive work. On seeing a rickshaw drawn by rickshaw puller, P.W. 3 with the petitioners 1 and 2 inside it along with a gunny bag put under a bundle of fuel and another basket on top of the fuel coming from the direction of the Pakistan, border, they stopped the said rickshaw and searched it and found the gunny bag and the basket to contain betelnuts. P.W. 1 thereupon asked the rickshaw puller to proceed to the Customs Office in Mantribari road with P.W. 1 and P.W. 2 and the articles inside as he wanted to make a further check. P. Ws. 1-3 followed the rickshaw. When the rickshaw had travelled for about 2 miles and passed a furlong beyond the Kotwali police station and reached near the house of petitioner No. 1, he asked the rickshaw puller to stop and on it being stopped, he got down and unloaded the basket of betelnuts from the rickshaw and was unloading the bundle of fire wood. Thereupon P. Ws. 1 and 2 protested and a hot altercation ensued between the petitioners 1 and 2 and P. Ws. 1 and 2. I have here taken the version given by P.W. 3, the rickshaw puller and not the version given by P. Ws. 1 and, 2, according to whom there was no such altercation. But their version is certainly likely to be somewhat coloured on this point and the rickshaw puller's version is more likely to be correct and disinterested.

4. The Peon, Ajit Das rushed to the police station when the trouble was going on and P.W. 4 the A.S.I. arrived on the scene and he was told by P.W. 1 that he was being obstructed by the surrounding crowd to take the rickshaw to the Customs office. No report of any manhandling by anybody in the crowd was made to the A.S.I. Anyway, the trouble ceased on the arrival of the A.S.I, and P.W. 1 and his party took the gunny bag of betelnuts and the remaining fire wood in the same rickshaw to the Customs office. The 'next day, after obtaining the necessary permission from his superior officer, P.W. 1 lodged the F.I.R. in the kotwali police station. Then the petitioners were prosecuted under Section 353, I.P.C.

5. The defence of petitioners 1 and 2 was that though the rickshaw was stopped by P.W. 1 and 'his party in Arundhutinagar area, there was no search at all. But the rickshaw was directed by "P.W. 1 to be taken to the Customs office. When 'the rickshaw reached near the house of petitioner No. 1, he asked the rickshaw to be stopped and on being stopped, he got down. But he did not try to unload anything from the rickshaw. The Customs officers objected to petitioners 1 and 2 getting down from the rickshaw and the Customs officers wanted to take them also to the Customs office. Then there was hot altercation but there was no manhandling. Thereupon P.W. 4 the A.S.I, arrived and everybody dispersed and the rickshaw with the articles inside was taken to the Customs office. Thus they deny the offence under Section 353, I.P.C. All the petitioners say that petitioner No. 3, Chitta Ranjan Sen had no part in the occurrence.

7. The magistrate held, as I said, that the petitioners were guilty under Section 353, I.P.C. According to him, betelnut was a contraband article and the Inspector and Sub-Inspector of Land Customs were competent to haul up any person on suspicion moving betelnuts from the border area and that as the gunny bag was full of betelnuts, P.W. 1 and his staff had every right to stop the rickshaw and to divert it to their office in order to further check the contents for necessary action and that they were discharging their official duties in so doing. The magistrate further held that after P.W. 1 had taken command of the rickshaw, the occupants namely, petitioners 1 and 2 had no more right to guide the rickshaw puller or to call upon him to stop and that the attempt on the part of the petitioners 1 and 2 to forcibly stop the rickshaw in front of the house of petitioner No. 1 on the way to the Customs office was undoubtedly an obstruction offered to the Customs staff in the discharge of their official duty. He further held that Chitta Ranjan Sen joined petitioners 1 and 2 in forcibly taking away the goods from the rickshaw and the Customs staff were surrounded and "mishandled" by them and hence the petitioners were all guilty of offering obstruction to P.W. 1 and his staff while engaged in the discharge of their official duty. The learned Sessions Judge was in entire agreement with the magistrate in confirming the conviction. He said that the petitioners were guilty under Section 353, I.P.C. by forcibly preventing the Customs officers from taking the rickshaw to the Customs office. The lower Courts appeared to be under the impression that mere obstruction to a public servant would amount to an offence under Section 353. It is not so. The main ingredient is assault or use of criminal force.