State Of Maharashtra v. Jayanti LAL And Others

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal | No. 447 of 1979.

"Appeal by Special leave from the Judgment and Order dated _ the Ist/?nd February, 1979 of the Bombay High Court (Nagpur. Bench)

in Criminal Appeal No. 26, 27-30, 33 and 36 of 1975 and Criminal

_ Revision Application Nos. 82 & 83 of 1975. DP. Rana and M.N. Shop for the Appellant. NLM. Ghatat and VD. Deshpande for the Respondents, The J udgment of the Cour was delivered by’

2 RANGANATH Misra,” J. This appeal by special leave at the instance of the State. of Maharashtra is directed against the decision .

. of a Full Bench of the High Court of Bombay dealing with an interes- ting. question under the Forward Contracts (Regulation) Act, 1952

(‘Act’ for short). Several prosecutioris. were launched against tha respondents for offences. punishable under sections 20 and 21 of the

.

MAHARASHTRA ¥, JAYANTI LAL (Ranganath Misra, J): 433

Act on the basis’ of invéstigation carried under section 5(2) of the Code of Criminal Procedure, 1898 (‘Code? for short).and seizure of documents as a result of search conducted under s.165 of-the Code.

Two cases ended in conviction and seven prosecutions resulted in acquittal. Against the conviction two separaie appeals wee carried to the Court of Sessions which were dismissed. The convicted accused carried two criminal revisions to the: High Court. Against acquittal in other prosecutions the State preferred appeals tothe High Court. The seven criminal appeals and the two criminal revisions weré ulti-

‘mately referred to a Full. Bench for deciding the question raised, viz., as to whether or not the cases in question would t be. governed by the provisions of s.22B of the Act.

The Full Bench has come to: the following conclusions (State of Maharashtra y. Jayantilal Popatlal Chandrani, ere):

@ By sections. 22A and. 22B inserted into the Act by Amending Act 62 of 1960, the. application of the provisions of s.5(2) of the Code in respect of offences under the Act was-not excluded. Therefore, even with these provisions in the Act it was open to the. prosecution to

_ make investigation under the Code and in. exercise of powers vested under s.165 thereof seasch-and seizure could be effected

~ (a) The ‘manner of search and seizure under the Code and . under s.22A of the Act were different. The new provisions were inserted into the Act with a view to obviating’ the difficulties in successfully prosecuting the delinquents

‘for offences under the Act ;

* (3) The presumption contemplated in s.22Bis confined to books of account and other documents seized pursuant to a warrant issued under s.22A (1) of the Act and not to. ~ " documents’ seized in exercise of powers under the Code.

The High Court referred to an earlier decision of the Division Bench of the same Court where it had been held that the insertion . of the two provisions by Act 62 of 1960 did. not. have the effect of. excluding the application of the Code to prosecutions..under the Act .

_ but in view of the conclusions indicated above, it did not ‘agree with

(979) Cri. Les. 1232.

. 434. , : sO SUPREME COURT REPORTS | oo 11984] 2 SCR .

the earlier view of the Division Bench ‘that ‘the presumption under ' §, 22B- of the Act also extended to documents seized in investigation .

‘under the Code without the aid of s. 22A of the. Act. an ae . Neither counsel contended before us : that the insertion of sé. 22A and 22B had the effect of excluding the application of s, 5(2) of the Code. We are in agreement’ with the view expressed by the: Full

- Bench that the provisions of the Code stilt apply to investigation of offences’ sunder the Act.

*, The only question which hasbeen seriously sie at the Bar.

is as to whether the presumptions’ provided under s.'22B of the Act

- ‘would bé available. in respect of . books of “account and: documents

_ seized in investigations under the Code where action has not been - ‘taken under s. 22A of the Act ? The two sections inserted by Act 62 “Of 1960 Provided : ;

re

“22, ay Any. presidency magistrate ora magistrate of the, first class may, by warrant, authorise any police. officer not below the rank of sub-inspector to. enter upon and search any place ‘where books of account. or other docu-

- ments relating to forward contracts or options in goods | entered into in contravention of the provisions of this Act, may be or may be reasonably suspected; to be, and such’ police ‘officer. may seize any. such book ‘or document, if in his opinion, it relates, to any such forward contract or option in —

+ goods; Las oo

- : , Q) The’ provisions of the Code of Criminal Procedure, .

_ 1898, shall, so far.as may be, apply to any search or seizure made under sub-section (1) as they apply to any search or “4

‘seizure made under the authority of a warrant issued under ‘section 98 of the said Code. =

‘228. (1) Where any. books of account or other docu: “ments are’ seized from any place and there are entries therein _. -making reference to quantity, quotations, rates, months of --- » ” delivery, receipt or payment of differences or sale or purchase ‘of goods or ‘option in goods, such books of account or other . ‘documents shall be admitted in’ evidence. without witnesses having to appear to prove the same; ‘and:such: entries shall be. prima facie evidence of the matters, transactions. and accounts purported: to be therein, recorded;

MAHARASHTRA V. JAYANTI LAL (Ranganath Misra, J.) © 435 _ (2) Inany trial for an offence-punishable under section 21, ‘it shali be presumed, until the contrary is proved, that the place in which the books of account-or other docu- | ments referred io in sub-section(1) were seized, was used, and . that the persons found therein were present, for the Purpose: of committing the said offence.” > : . o There is no dispute that these provisions. came *to be inserted . ‘when it became difficult to successfully progecute offenders underthe Act on account: of want cof evidence, particularly with reference “to the. accounts ‘and other documents. Both, the sections -were intro-

" _ duced at the same time. Section 22A(1) empowers ' the presidency magistrate or a mag istrate of the first. class, by warrant, ‘to authorise

4 police officer not’ below the rank of a sub-inspector to enter upon and search’ any place where books of account or other documents

_ relating to forward’ contracts or options in goods _ entered into in _ contraverttion of the provisions of the Act may, be or may reasonably -be suspected to b available. This indeed is a special provision pres-

" cribing a particular procedure. Section 22B(1) does refer. to docu- ments seized from dny place as referred to in s, 22A(I). _ Ordinarily, in 4 Criminal prosscition the burden to prove the charge is on the

‘Prosecutor. A special rule of evidence has been provided by raising of a Presumption as a result of which the. burden which ordinarily lay On .th¢ prosecution has been shifted ‘to the defence. The manner in. which the-two new provisions have: come into the. Act, the placement of the two provisions, reference to: books. of account and documents seized from ‘any place in s. 22B(1) which are. words uséd in s.22A(1), .

_ and the fact that Parliament has prescribed a special procedure of _ authorisation by a magistrate and has prescribed special credence . .

to be given to these documents seized /purlsuant to ‘the particular procedure prescribed, lead: to the only concusion that the benefit of $.22B of the Act is confined to books of account and documents which have been seized pursuant to a warrant authorising a police officer not below the rank of sub- -inspectot as. prescribed i im s. 22A(1) of the

“Act. A special mode was prescribed requiring’ magisterial. warrant, ‘authorisation of a police officer not below the rank of a sub-inspectot, the place to be searched was:1eguired to. be specified inf warrant;

_ magisterial control was prescribed over the investigation and when.

these conditions were. satisfied, the special - “rule of evidence became

: applicable.

"Admittedly therei is no indication i in s. 228 of the Act as to whether entries in the books of account and documents seized without the aid

ABG | " SUPREME COURT REPORTS Tosa 8.c.R.

of's. 22A(1) would havé the benefit of Such presumption. But since a special procedure has been indicated in s. 22A:and s. 22B which is with reference to s.22A has provided the special mode of evidence, ~ we agree with the view of the Full Bench that in order to have the benefit of s. 22B of the Act,.the prosectition must have carried on the search and seizure of the,books of account and documents in the tanner prescribed under s. 22A(1) of the -Act. Unless the special procédure has been followed, the Special rule ‘of evidence under S. 22B of the ‘Act would not be attracted.

As \ we have held that it would be open to the prosecution to carry on investigation of ‘offences under the normal provisions of the Code as also by invoking the special provisions ins. 22A of the Act, two separate. positions would arise with reference to seized books of

‘account and other documents, When s. 22A of the Act has been | .

invoked the presumption under s. 22B of the Act would arise. When _ investigation has been carried under the Code without the aid of s.22A of the Act, the presumption would not arise and the prosecu- - tion will have to prove the documents according to the ordinary rule’ of evidence. ‘It was canvassed before us that such an anomalous position could not have been intended by Parliament and it must have -been the legislative intention to extend the benefit of s. 22B to books of account and documents seized ‘by the prosecution with or without the aid of s. 22A of the Act. We are ‘not inclined to accept this submission for the reasons we have indicated and in our opinion there is nothing anomalous because in one case the normal tule of -evidénce would apply and in the other, where the special modé has been invoked, the presumptions would arise. Such a situation is not ‘unknown in law and we uphold the view of the Full Bench,

At the hearing: some decisions of the different High Courts - i were placed before us. A learned single Judge in The Bullion &

Agricultural Produce Bxchange Private Limited y. The Forward Markets —

‘Commission, Bombay & Ors:,9) took the view that search conducted without the requisite. warrant from a magistrate was ab initio void. ,

- Tn view of the conclusions we have reached, this decision is certainly ‘bad and cannot be accepted as laying. down good law. In State of U.P. & Anr. v. Chambers of Commerce (Regd.). Chandausi, District . Moradabad & Ors.,® a Division Bench had taken the view that under

8. 3) of the Code offences under the Act could still be investigated

@) ALR 1508 Bom. 338. . ee (2) 1970 All. L,J.-182, SO

MAHARASHTRA Y, JAYANTI, LAL (Ranganath.Misra, J.) . 437 and 8.165 of the. Code was not inconsistent with but. supplemental, to s, 22A of the Act. So far as this decision goes there is nothing inconsistent with what we have said. A single Judge.of the Bombay

High Court in M.R. Pillai v. M/s. Motilal Vrijbhukandas & Ors.|™ took the view thats. 22A of the Act ‘did not debar the police from exercising the powers under s: 165 of the Code. This is in accord with’ the. conclusion reached by us. oo 8

The appeal i is dismissed and the decision ‘of the Full Bench is affirmed. ; .

SR -. +” Appeal dismissed.

-.(y AIR 1970 Bom. 24.