Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ No. 4144 of 1966

Judges

Satish Chandra, J.

Acts

provisions of Chap. V of the Forward Contracts (Regulation) Act containing, inter alia, S. 22-A,
Act. Sub-sec. (2) of Section 22-A makes the provisions of the Code of Criminal Procedure
SECTION 22 FORWARD CONTRACTS REGULATION ACT 1952
SECTION 23 FORWARD CONTRACTS REGULATION ACT 1952
Central Excises and Salt Tax Act to which Section 165
provisions of Sections 157 and 165 of the Cr PC and(2)
Articles 19 and 31 of the Constitution A provision
FORWARD CONTRACTS REGULATION ACT
Contract (Regulation) Act the provisions
Contract (Regulation) Act (No. 74 of 1952)
Contracts (Regulation) Act
O. 21, Rule 91 of the CPC
sub-sec. (2) of Section 5

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner is a private limited company incorporated in 1946 that carried on business as commission agents in forward trading. Following a Central Government order (1 June 1964) banning forward trading in many goods (including groundnut oil), the petitioner resumed business on 4 January 1965 in non-transferable specific delivery contracts in groundnut oil. On or about 15 May 1966 the Forward Markets Commission complained to the Deputy Superintendent of Police, C.I.D., Lucknow, alleging that the petitioner was carrying on illegal forward trading in various oils and options in goods at Agra. The Deputy Superintendent entrusted investigation to the Inspector (respondent No. 2), who organized a raid on the petitioner's premises on 18 May 1966. The petitioner’s staff were arrested (later enlarged on bail) and a large number of books and documents were seized.

The petitioner filed a petition under Article 226 of the Constitution seeking that: (a) the proceedings consequent on the search and seizure of 18 May 1966 be quashed; (b) the respondents be directed to return the seized documents and account books; and (c) the respondents be restrained from launching any prosecution based on the seized documents. The petition challenged the search and seizure on two main grounds: non-compliance with Sections 157 and 165 of the Code of Criminal Procedure (CrPC) and contravention of Section 22-A of the Forward Contracts (Regulation) Act, 1952.

Legal Issues Presented

Whether the search and seizure of the petitioner's premises on 18 May 1966 violated the mandatory provisions of Sections 157 and 165 of the Code of Criminal Procedure.
Whether the search, seizure and subsequent proceedings contravened Section 22-A of the Forward Contracts (Regulation) Act, 1952, such that the proceedings were null and void for want of compliance with that section (in particular, whether the search could be made without a Magistrate's warrant under the Act).
Whether Section 22-A of the Forward Contracts (Regulation) Act is directory or mandatory in nature, and the legal consequences of non-compliance with it.

Arguments of the Parties

Petitioner's Arguments

The search and seizure violated the mandatory requirements of Section 157(1) CrPC (alleging failure to send a report to the Magistrate).
The investigating officer did not comply with Section 165 CrPC (alleging failure to record in writing the grounds of belief required by sub-section (1) and failure to send copies to the nearest Magistrate as required by sub-section (5)).
The search contravened Section 22-A of the Forward Contracts (Regulation) Act because no Magistrate's warrant had authorised the search; therefore, the search and seizure and consequent proceedings are null and void.

Respondents' Arguments

The second respondent asserted that he did make the requisite written note of the grounds of belief under Section 165 and that his affidavit was sworn on personal knowledge and relevant records (denying the petitioner's factual allegations about non-compliance).
The respondents contended that the offence under Section 23 of the Forward Contracts (Regulation) Act was cognizable and therefore search, seizure and arrest could be carried out without a warrant; reliance was placed on provisions of the CrPC (in particular Section 165) which permit searches during investigation of a cognizable offence.
For justification, respondents relied on precedent authority (including Dhirendra Nath v. Sudhir Chandra) arguing that certain procedural requirements may be directory and that objections can be waived; respondents also pointed to a decision of the Bombay High Court which held that contravention of Section 22-A did not vitiate a search.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Rajasthan v. Rehman, AIR 1960 SC 210	Held that search under Central Excises and Salt Tax Act (where Section 165 CrPC applied) must comply with the four conditions of Section 165 CrPC; contravention of Section 165 renders search illegal; protections required where fundamental rights of property/liberty are affected are mandatory.	The court relied on its reasoning to emphasise that statutory provisions imposing safeguards for searches that affect fundamental rights must be treated as mandatory; this supported the view that procedural safeguards required by a statute must be complied with to validate search/seizure.
Collector of Monghy v. Keshav Prasad, AIR 1962 SC 1694	Explained that whether a provision is mandatory or directory depends on purpose, context and whether it safeguards liberty or property; the mere use of "shall" is inconclusive.	The court applied this principle to determine that Section 22-A should be judged in context and concluded that, given its protective purpose, Section 22-A is mandatory rather than merely directory.
Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300	Held that certain procedural requirements (there, O.21, r.91 CPC) may be directory; introduced the practical test of whether a party can waive the objection (waivable = irregularity; non-waivable = nullity).	Respondents relied on this case to argue directory character and waiver; the court referred to the waiver test but found Section 22-A to be conceived in public interest and not waivable, and therefore mandatory in character.
Bombay High Court, Criminal Appeal No. 753 of 1963 (decided 3 April 1964)	Held that contravention of Section 22-A in investigating a cognizable offence under the Forward Contracts (Regulation) Act did not vitiate the search; in that view Section 165 CrPC would validate the proceedings.	The court considered this decision but explicitly disagreed, stating it could not endorse that viewpoint; the court held that in the present case the search without the requisite Magistrate's warrant was void ab initio.

Court's Reasoning and Analysis

The court proceeded in a step-by-step analysis, confined to the materials and submissions before it:

Allegations under Sections 157 and 165 CrPC:
- The petitioner alleged non-compliance with Section 157(1) CrPC (failure to send a report to the Magistrate). The court noted that the relevant averment in paragraph 35 of the petition was sworn "on the advice of counsel," and held such an averment (being of fact) was inappropriately sworn on legal advice; accordingly the court declined to entertain that factual claim.
- Regarding Section 165(1) CrPC (requirement to record in writing grounds of belief), the court found that the petitioner's allegation (para 37) was also sworn on the advice of counsel and hence inadmissible. The second respondent's counter-affidavit expressly stated that he had made the requisite written note and that paragraph 9 was sworn on personal knowledge and on perusal of records; the court accepted that the necessary grounds were recorded.
- As to sub-section (5) of Section 165 (copies to be sent to the nearest Magistrate and owner), the court observed there was no specific averment that copies were not sent; paragraph 43's sweeping claim that respondent No. 2 did not comply with any provisions of Section 165 was too vague and had been denied by the respondents; therefore the court did not allow this point to succeed.
Analysis of Section 22-A of the Forward Contracts (Regulation) Act:
- The court examined Section 22-A(1) (authorisation by a Presidency Magistrate or Magistrate of the first class by warrant to a police officer not below sub-inspector to enter and search for books/documents) and Section 22-A(2) (provision that the provisions of the CrPC "shall, so far as may be, apply to any search or seizure made under sub-sec. (1) as they apply to any search or seizure made under the authority of a warrant issued under Sec. 98" of the CrPC).
- The court interpreted sub-section (2) as a limiting provision: only those parts of the CrPC that are applicable to a search under a warrant issued under Section 98 CrPC are made applicable; other parts (such as provisions in Chapters XIII and XIV) would not be attracted simply because the Act references the CrPC.
- The court surveyed relevant groups of CrPC provisions (search on arrest, search of arrested persons, search under warrants in Chapter VII (Secs. 98–103), search without warrant under Sec. 153 in Chap. XIII, and searches by police during investigation in Chap. XIV including Sec. 165). It concluded that in view of Section 22-A(2) only the Chapter VII provisions (search under warrants) were drawn in as applicable to searches under Section 22-A(1); provisions permitting search without warrant under Chapters XIII and XIV were therefore not automatically applicable to searches under the Forward Contracts Act.
- Applying Section 5 CrPC (which makes CrPC applicable to offences under other laws subject to any enactment regulating manner/place of investigation), the court held that where the Forward Contracts Act contains specific provisions governing manner/place of investigation (including Section 22-A), those provisions prevail and CrPC applies only subject to them. Hence Section 22-A operates as part of the special regime regulating searches under the Act.
- The court concluded that Section 22-A provides a condition precedent to valid searches for suspected contravention of the Act and is intended to provide safeguards to persons whose premises/books are being searched. On the purpose and scheme of the Act and having regard to the protective object of Section 22-A, the court held that Section 22-A is mandatory in nature (not directory) and non-compliance renders searches void.
Consideration of authority and final application:
- The court considered Supreme Court authorities (State of Rajasthan v. Rehman and Collector of Monghy v. Keshav Prasad) and applied their principles to conclude that statutory safeguards intended to protect rights of liberty and property (as here) must be treated as mandatory.
- Although respondents relied on Dhirendra Nath (principles of waiver and directory provisions) and a Bombay High Court decision that had held contravention of Section 22-A did not vitiate searches, the court distinguished and rejected those authorities for the facts and legal scheme here. The court found the Bombay High Court decision unpersuasive and could not endorse it.
- Given that the raid/search was conducted without the requisite warrant from a Magistrate under Section 22-A, the court held those proceedings were void ab initio, quashed the search and seizure, and directed return of the seized books and documents and that no prosecution be launched on the basis of those seized materials.

Holding and Implications

Core Ruling: PETITION ALLOWED — the search and seizure of 18 May 1966 are quashed as void ab initio.

Direct consequences and orders made by the court (as stated in the opinion):

The respondents are directed to forthwith return the documents and account books seized during the search on 18 May 1966.
The respondents are directed not to launch any prosecution of the petitioner on the basis of the account books and documents seized during that search.
The petitioner is awarded costs assessed at Rs. 350.

Broader implications: The court interpreted Section 22-A of the Forward Contracts (Regulation) Act as mandatory in nature, holding that compliance with its warrant requirement is a condition precedent for valid searches under the Act. The opinion did not purport to lay down a new, general precedent beyond this specific interpretation and outcome; its ruling is applied to the facts of this petition (i.e., search without Magistrate's warrant was void). No further broader implications were expressly declared beyond the direct effect on the parties in this case.

Outcome recorded in the opinion: "Petition allowed."

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The Bullion And Agricultural Produce Exchange Private Limited v. The Forward Markets Commission, Bombay And Others Opposite Parties.

1. This petition under Article 226 of the Constitution prays that the proceedings consequent on the search “and seizure of the petitioner's premises made on 18th May, 1966, quashed and the respondents be directed to return the seized documents and the account books and not to launch any prosecution of the petitioner on the basis of the seized documents. The petitioner is a private limited company incorporated in 1946. It carried on the business of commission agents in respect of forward trading in various goods. The Forward Contract (Regulation) Act (No. 74 of 1952) was passed by the Parliament to regulate trading in forward contracts. This Act established the Forward Markets Commission. Under Section 14-A of the Act an association could not carry on business in forward contracts except in accordance with the conditions of a certificate of registration granted to it by the Commission the petitioner made an application for registration on 15th December, 1962 A registration certificate was granted to the petitioner. By an order issued on 1st June, 1964, the Central Government banned forward trading in many kinds of goods including groundnut oil. The petitioner company was carrying on business in Arhar ki Chuni. This was also one of the goods, forward trading in which was prohibited by the Central Government. The petitioner states that its business came to a standstill and it commenced business again from 4th January, 1965, in forward trading in non-transferable specific delivery contracts in groundnut oil.

2. It appears that on or about 15th May, 1966, the Forward Markets Commission made a complaint to the Deputy Superintendent of Police. C.I.D Lucknow, stating that the petitioner was carrying on illegal forward trading business in Vanaspati, linseed oil and mustard seed oil and options in goods at Agra. The Deputy Superintendent of Police, Crimes Branch, C.I.D entrusted the investigation of this matter to the Inspector, Criminal Investigation Department, respondent No. 2. The respondent No. 2 has in his affidavit stated that on receipt of this report and believing that a cognizable offence was being committed by the petitioner's firm, he along with the Deputy Superintendent of Police, C.I.D, Deputy Superintendent of Police-in-charge, City Agra, and the Officer-in-charge of Police Station Chhata, organised a raid of the petitioner's premises. He has stated that it was apprehended that the petitioner's exchange would have done away with the incriminating evidence had they got any scent of the proposed raid. The offences which were being committed were of a cognizable nature and in the circumstances it was not advisable to obtain a warrant for making search. The raid was actually made on 18th May, 1966. The staff of the petitioner's company was arrested and a large number of books and documents of the petitioner's company were seized and taken away. The arrested persons were later on enlarged on bail. The search and seizure of the petitioner's books and documents have been challenged on the following grounds:—

(1) That it violated the mandatory provisions of Sections 157 and 165 of the Cr PC and

(2) That the proceedings contravened the provisions of Section 22-A of the Forward Contracts (Regulation) Act, 1952 and as such the entire proceedings were null and void.

3. In respect of the first point it is alleged that the mandatory requirements of Section 157(1) of the Cr PC that the investigating officer shall forthwith send a report of the information received by him on the basis of which he had reason to suspect the commission of an offence, were not complied with. No such report was forwarded to the Magistrate. This averment in para 35 of the petition has been sworn on the advice of counsel. The averment is one of fact and cannot appropriately be sworn from legal advice. The foundation of fact not having been made appropriately, the question does not arise.

4. It has also been alleged that the provisions of Section 165 of the Cr PC have also been contravened. Sub-sec. (1) of Sec. 165 requires an investigating officer to record in writing the ground of his belief that anything necessary for the purpose of an investigation may be found in any place and that such thing cannot in his opinion be otherwise obtained without undue delay. It is alleged that the second respondent did not record in writing such grounds. This allegation has been made in para 37 of the petition. This paragraph has also been sworn on the advice of counsel and is inadmissible.

5. In the counter-affidavit, the second respondent has specifically stated that he made the requisite note in writing mentioning the grounds of his belief. Paragraph 9 has been sworn on personal knowledge as well as on perusal of relevant records. The swearing clause cannot be held inappropriate. I am hence unable to find that the requisite grounds were not recorded.

6. It was then urged that under sub-sec. (5) of Sec. 165, copies of any record made under sub-sec. (1) have to be forthwith sent to the nearest Magistrate empowered to take cognizance of the offence and the owner of the place searched is entitled to be furnished with the copy of the same by the Magistrate. There is no averment to the effect that the copies of the record were not sent to the nearest Magistrate. Para 43 only states that the respondent No. 2 did not comply with any provisions of Section 165 of the Cr PC in making the search. This, in my opinion, is not an allegation requisite for the point urged by the learned counsel. It does not mean that the copies of the record were not sent to the nearest Magistrate. Moreover, this vague allegation has been denied in para 14 of the counter-affidavit. This point hence cannot succeed.

7. The second submission of learned counsel was that Section 22-A of the Act has been contravened. It was urged that in view of Sec. 22-A only a Police officer who has been authorised by a Magistrate by warrant can search any place. In the present case the second respondent had not been empowered by warrant of any Magistrate. He hence had no authority to enter the petitioner's premises and search it or seize the petitioner's books of account and documents. It has not been disputed that no warrant authorising the second respondent or his companions was issued. In para 14 of the counter-affidavit, the second respondent has stated that the offence under Section 23 of the Forward Contracts (Regulation) Act, 1952, being cognizable search, seizure and arrest could be carried out without a warrant. It is apparent that the raid and the search in the instant case were conducted for investigating the offence under Section 23 of the Forward Contracts (Regulation) Act. This section enumerates the offences falling under other provisions of the Act which will be deemed to be cognizable within the mining of Code of Criminal Procedure. Section 22-A of the Act reads as follows:—

“22-A. (1) Any presidency magistrate or a 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 documents 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.

(2) The provisions of the Cr PC 1898, shall, so far as may be, apply to any search or seizure made under sub-sec. (1) as they apply to any search or seizure made under the authority of a warrant issued under Sec. 98 of the said Code.”

8. Under Section 22-B of the Act the books of account or other documents seized from any place shall be admitted in evidence without witnesses having to appear to prove the same and the entries therein shall be prima facie evidence of the matters therein recorded. Section 24 of the Act provides that no Court inferior to the Court of a Presidency Magistrate or a Magistrate of the first class shall take cognizance or try any offence punishable under this Act. Sections 20, 21 and 22 of the Act lay down the penalties for various offences under the Act.

9. It is thus clear that the Act makes certain provisions with respect to matters relating to search and seizure as well as trial of offences punishable under this Act. Sub-sec. (2) of Section 22-A makes the provisions of the Code of Criminal Procedure applicable to search or seizure under sub-sec. (1) so far as they may be applicable; but it has to be noticed that only such provisions of the Code of Criminal Procedure have been made applicable as are applicable to any search seizure made under the authority of a warrant issued under Section 98 of the said Code. This is a provision of limitation. Other provisions of the Code of Criminal Procedure relating to search or seizure will hence not be attracted.

10. The Code of Criminal Procedure contains four groups of sections to regulate searches contemplated by it. Sec. 47 in Chap. V of the Code provides for the search of a place entered by person sought to be arrested. Secs. 51 and 52 provide for the search of arrested persons. Chap. VII consisting of Secs. 100 to 103 deal with search under search warrants issued by Magistrates. Sec. 100 deals with search of persons wrongfully confined. Sec. 101 makes the provisions of Secs. 43, 75, 77, 79, 82, 83 and 84 applicable to search warrants issued 1 under Secs. 96, 98, Sec. 99A or Sec. 100-Sec. 102 deals with search of a closed place. Sec. 103 provides the procedure for the search. Under it two respectable inhabitants of the locality have to be present to witness the search.

11. In Chap. XIII Sec. 153 is another provision where a Police officer can make a search without a warrant. The fourth group of provisions is in Chap. XIV which provides for searches by a Police officer during the investigation of a cognizable offence; Sec. 165 is in this chapter. It enables a Police officer to make a search without a warrant. For it a warrant under Section 98 of the Cr PC is not a condition precedent. Section 98 of the Cr PC deals with search of houses suspected to contain stolen property, forged documents, etc. Under it a search can be made only if the relevant Magistrate by his warrant, authorises any Police officer to make the search. In view of specific provision of sub-sec. (2) of Sec. 22-A only the provisions in Chap. VII including Secs. 98 to 103 will be applicable to searches made for investigating into offences under the Forward Contract (Regulation) Act the provisions in Chaps. XIII and XIV will not be applicable.

12. Section 5 of the Cr PC leads to the same conclusion. Sub-sec. (1) of Sec. 5 provides that an offence under I.P.C shall be investigated, enquired into and tried and then dealt with according to the provisions hereinafter contained. Sub-sec. (2) deals with trial of offences against other laws. It says that all the offences under any other law shall be investigated, enquired into and tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. Thus in respect of offences against other laws the provisions of the Code of Criminal Procedure are subservient to the provisions of any enactment providing for regulating the manner or place of investigating, etc. The provisions of Chap. V of the Forward Contracts (Regulation) Act containing, inter alia, S. 22-A, will prevail in so far as they deal with the manner or place of investigating, enquiring, trying, etc., and the provisions of the Code of Criminal Procedure will apply subject to those provisions. If there is any specific provision in the Forward Contracts (Regulation) Act in respect of the applicability of the Code of Criminal Procedure in matters relating to the manner or place of investigation, etc., that will also prevail. Sub-sec. (2) of Sec. 22-A will apply and exclude the provisions of the Code of Criminal Procedure mentioned or intended by it.

13. It was urged that Section 22-A(1) does not make provision for regulating the manner or place of investigating. It only confers a power on the mentioned Magistrates to authorise any Police officer by warrant to make search and seizure. I am not impressed by this submission.

14. The Forward Contracts (Regulation) Act provides for regulation of matters relating to forward contracts, the prohibition of options in goods and for matters connected therewith. It constitutes a Forward Markets Commission. It provides for registration of recognised associations. The Central Government is authorised to ask for periodical returns relating to affairs of the association and to enquire into its affairs, vide Sec. 8. The Central Government can, under Sec. 14, direct the recognised association to suspect its business for a period that may be specified if in the opinion of the Central Government the interest of the trader or public interest so requires. Under Sec. 15 the Central Government can declare illegal forward trading and options in goods that may be notified. Secs. 20, 21 and 22 impose penalties for the contravention of the provisions mentioned therein. Under Sec. 22-A the authorised officer can search any place and seize books of account or documents relating to forward contracts or options in goods entered into in contravention of the provisions of this Act. It is manifest that the officer empowered by the Magistrate can only make a search when contravention of the provisions of the Act is suspected. The object of the search is only to ascertain whether there is a contravention of the provisions of the Act, Sec. 22-A hence enables the authorised officer to make a search only for the investigation of an offence under the Act

15. Sub-sec. (2) of Sec. 22-A providing for the applicability of the relevant provisions of the Code effectuates that intention. The applicable provisions of the Code of Criminal Procedure provides for searches by a Police officer during the investigation of an offence. The power of search provided for by Sec. 22-A is incidental to the conduct of investigation by the authorised Police officer. The provisions in Sec. 22-A provide a condition precedent to the validity of a search for suspected contravention of the provisions of this Act Sec. 22-A relates to the manner or place of investigation spoken of by sub-sec. (2) of Section 5 of the Cr PC. It is not a provision conferring jurisdiction. It provides safeguards and protection to the person whose place is intended to be searched or whose books are sought to be seized. There is, in my opinion, no justification for the submission that search and seizure for suspected contravention of the provisions of Forward Contracts (Regulation) Act can be carried out independently of Section 22-A of the Act or without complying with its provisions.

16. It was urged that Sec. 22-A is directory in nature and non-compliance with its provisions will not render the proceedings void. In State Of Rajasthan v. Rehman , AIR 1960 SC 210 it was held that search under the Central Excises and Salt Tax Act to which Section 165 of the Cr PC is applicable must be conducted after complying with the four conditions imposed by Section 165 of the Cr PC and contravention of Sec. 165 of the Code made the search illegal. Their Lordships did Act countenance the submission that the contravention was only an irregularity. The effect of search and seizure and arrest is not merely to invade a person's right of privacy but also to deprive him of his fundamental rights of property guaranteed under Articles 19 and 31 of the Constitution A provision or proceeding violating such guaranteed rights must fully comply with the statutory limitations on the exercise of such powers. The provisions of limitation having as their object protection or safeguarding the rights of the victim, will in law be mandatory in character and their contravention will render the proceedings illegal and void.

17. In Collector of Monghyi v. Keshav Prasad, AIR 1962 SC 1694, the Supreme Court in para 12 ruled that the employment of the auxiliary verb “shall” is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve. These observations are apposite. Judged from this point of view, the requirement of Sec. 22-A is mandatory.

18. For the respondents, reliance was placed upon Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300. There the Supreme Court held that O. 21, Rule 91 of the CPC was directory and their Lordships observed that the safest rule to determine what is an regularity and what is nullity is to see whether the party can waive the objection, if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. Their Lordships further held that an objection to jurisdiction cannot be waived. Where such jurisdiction is not wanting, a directory provision can be waived but mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. In the instant case, the objection is to the very jurisdiction or authority of the officer conducting the search and seizure. There is no averment that the petitioner waived his objection. The point really does not arise because the petitioner has come to Court at the earliest opportunity. The provisions of Sec. 22-A are mandatory in nature and they have been, in my opinion, conceived in the larger public interest and not merely for the benefit of an individual person. They are conditions precedent to the exercise of power of search. They are incapable of being waived. The contravention of Sec. 22-A cannot in either view of the matter be held to be a mere irregularity.

19. For the respondents my attention was invited to the decision of Bombay High Court in Criminal Appeal No. 753 of 1963 decided on 3rd April, 1964 (Bom.). There it was held that contravention of Section 22-A in investigating any cognizable offence of the Forward Contracts (Regulation) Act did not vitiate the search. Their Lordships held that Section 165 of the Cr PC would in any event apply and validate the proceedings. The matter has not been discussed in detail and I am with respect unable to endorse this viewpoint. In the instant case the search was conducted without the requisite warrant from a Magistrate. The proceedings were hence ab initio void. They are quashed. The respondents are directed to forthwith return the documents and the account books seized by them in the course of the search conducted on 18th May, 1966. The respondents are further directed not to launch any prosecution of the petitioner on the basis of the account books and documents seized during the course of the search. The petitioner will be entitled to his costs, which are assessed at Rs. 350.

LGC/DVC

20. Petition allowed.

The Bullion And Agri... v. The Forward Markets ...