K. L. SUBBAYYA versus STATE OF KARNATAKA

Citation: [1979] 2 S.C.R. 1131 · Decided: 24-01-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

.. 
K. L. SUBBA YY A 
v. 
STATE OF KARNATAKA 
January 24, 1979 
[S. MtJRTAZA FAZAL ALI AND A. D. KOSHAL, JJ.J 
1131 
M~sore Excise Act, s. 54, non-compliance of provisions under, if vitiate,\' 
conviction-Sa. 53 and 54, purpose. 
Tlie appellant was convicted under s. 34 of the l\1ysore Excise 
Act 
and 
sentenced tu three months R.I. and a fine of lls. 100/- for being in possession 
of 48 bottles of liquor, recovered from the car being driven by him. 
It was contended that the provisions of s. $'4 had not been complied with, 
and the search was made without jurisdiction. 
+ 
Allowing the appeal, the Court, 
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c 
HEID : 1.. The Inspector who searched the car of the appellant had not 
made any record of any grou.Qd on the basis of \Vhich he had a reasonable 
belief that an offence under the Act, was being committed, before proceeding 
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to search the car, and thus the provisions of s. 54 were not at all complied 
with, thereby rendering the entire s$rcb without jurisdiction and, as a logical 
corollary, vit;ating the conviction. [1132H, ! 133A-B] 
2. Both, Sections 53 and 54 contain valuable safeguards for the liberty of 
the citiz.en in order to protect them from ill founded or frivolous prosecution 
or harassment. [11338] 
E 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 10 of 
1974. 
Appeal by Special Leave from the Judgment and Order dated 
2?-11-1973 of the Kamataka High Court in Criminal Appeal No. 221/ 
73. 
S. S. Javali and B. P. Singh for the Appellant. 
M. Veerappa and J. R. Dass for the Respondent. 
The Judgment of the Court was delivered by 
FAZAL ALI, J.-In this appeal by Special Leave the appellant has 
been convicted under section 34 of the Mysore Excise Act and sentenced 
to three months' rigorous imprisonment and a fine of Rs. 100/- for being 
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in pcissession of 48 bottles of liquor which were recovered from a car 
which was being driven by the appellant. 
Mr. Javali appearing for the 
appellant has raised a short point before us. 
He has submitted that 
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the Inspector of Excise who searched the car along with the panchas 
had no jurisdiction to do so because he did so without complying with 
1132 
SUPREME C'OURT REl'OR"l S 
ll 9791 2 S.C'.R. 
A 
the provisions of section 54 of the. Excise Act. 
Jn our opinion, the 
contention is well-founded and must prevail, Section 53 runs thus : 
B 
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"If a Magistrate, upon information and after such inquiry 
(if any) as he thinks necessary, has reasons to believe that an 
offence under section 32, section 33, section 34, section 36 or 
section 37 has been, is being or is likely to be committed, he 
may issue a warrant-
(a) for the search of any place in which he has reason 
to believe, that any intoxicant still, 
utensil, 
implement, 
apparatus or materials which are used for the commission 
of such off_ence .or in respect of which such has been, is be-
ing, or fo likely to be, committed, are kept or concealed, and 
(b) for the arrest of any person whom he has reason to 
believe to have been, to be, or to be lJkely to be engaged in the 
commission of any such offence." 
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Thus this section relates to a contingency where the Statute enjoins 
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e 
that any inspector before searching a place must obtain a warrant from 
the magistrate. 
Section 54 is a special provision which arises in urgent 
cases where it may not be; possible for the officer concerned to get 
a 
warrant from the Magistrate. 
Section 54 runs thus : 
"Whenever the Excise Commissioner or a Deputy Com-
missioner or any police officer not below the rank of an officer 
incharge of a police station or any Excise pfficer not below 
such rank as may be prescribed has reason to believe that an 
offence under section 32, section 33, section 34, section 36, 
or section 37 has been, is being, or is likely to be committed, 
and that a search wq_rrant cannot be obtained without afford-
ing the offender an opportunity of escape or of concealing evi-
dence of the offence;, he may after recording the grounds of his 
belief-
(a) at any time by day or by night enter and search any 
place and seize anything found therein which he has 
reason to believe to be liable to confiscation under this 
Act; and 
(b) detain aud search and, if he thinks proper, arrest any 
person found in such place whom he has reason to be-
lieve to be guilty of such offence as aforesaid." 
In the instant case, it is admitted that the inspector who searched the 
car of the appellant had net made any record of any grou

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