Case: K.L. Subbayya Vs. State of Karnataka

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 in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant.

Reasoning:
In our opinion, the contention is well-founded and must prevail, Section 53 runs thus: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 offence or in respect of which such has been, is being, or is 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 likely to be engaged in the commission of any such offenceThus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrateIn the instant case, it is admitted that the inspector who searched the car of the appellant ha d not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied withThis, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelavant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word place would not include the car, but the definition of the word place under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of section 54 which renders the search completely without jurisdiction.