The Judgment of the Court was as follows:—
The petitioners have been convicted by the Deputy Magistrate of Puri of the offence punishable under sections 147 and 353, I.P.C and have been sentenced each to two months' rigorous imprisonment: on appeal the conviction and sentences have been affirmed by the Sessions Judge. The facts found by both the Lower Courts are that Janaki Nath Basu, Special Excise Sub-Inspector of Puri, having received information that Gurjat Ganja was concealed in the house of the petitioner Jagarnath Mandhata, went to his house to search it, accompanied by certain police-officers and excise peons, and that he and his party were opposed by the petitioners and others in their attempt to search the house in question, and were at the same time assaulted. The main ground urged in support of the Rule which we granted on the application of the petitioners is that inasmuch as Gurjat Ganja is a foreign excisable article as defined in section 4 of Act VII of 1878 (as amended by Act IV of 1881 B.C) it is not included in the term excisable article as used in sections 75 and 4 of that Act, and consequently the Excise Officer had no legal authority under section 40 to enter and search the house of Jagarnath Mandhata. We have considered the terms of the various sections referred to and the definitions of excisable and foreign excisable article as given in the Act, and we are of opinion that the Excise Officer had no legal authority to search the petitioner's house. Section 4 of the Act, as amended by Act IV of 1881 B.C, contains separate and distinct definitions of “excisable article” and “foreign excisable article” and therefore, we think that wherever either of these expressions occurs in the Act, it is used in the sense and with the meaning given to it in the definitions. The words used in section 75 are “excisable article” and the words “foreign excisable article” do not occur therein, so that in the view we take, the Excise Officer in the present case had no authority under section 40 to enter and search the petitioner's house; he had authority only to search for any excisable article as defined in section 4 of the Act.
The learned Judge has expressed the opinion that reading sections 4, 17 and 17A together “excisable article” includes “foreign excisable article,” and that the latter is only a “particular sub-class under the former class,” and that section 75 is therefore applicable to Gurjat Ganja. We are, however, unable to adopt that view. As already stated, sec. 4 distinguishes between excisable and foreign excisable articles.
Sec. 17 refers to excisable articles only, while sec. 17A gives to the Board of Revenue, with the sanction of the Local Government, the power to declare by notification that the possession of any “foreign excisable article” is prohibited within districts and tracts specified in the notification. No doubt it appears from the Deputy Magistrate's explanation that a notification has been duly published prohibiting the possession of any foreign excisable article without a license from the Collector in the District of Puri, but all the law provides with reference to such articles, is that the person in possession thereof shall be liable to a fine (See sec. 61A). There is nothing to indicate, so far as we can discover, that foreign excisable articles are meant to be a sub-class of excisable articles, and indeed, we do not find that such articles are liable to seizure and confiscation as excisable articles are under sec. 76 of the Act. It follows therefore that the Excise Officer had no authority to proceed under sec. 40 of the Act. We may also refer to sec. 82 of the Act in which a distinction is drawn between an “excisable article” and a “foreign excisable article,” thus indicating that the Legislature did not mean foreign excisable articles to be a subclass of excisable articles. We also think that sec. 99 of the Indian Penal Code and the authorities referred to by the Sessions Judge in his judgment are not applicable to the facts and circumstances of the present case. The common object of the assembly was to resist the search of the house which, as we have already said, the Excise Officer had no legal authority to make, and that being so, we are unable to say that such assembly was an “unlawful assembly,” as defined in sec. 141, I.P.C, and that when force was used the offence of rioting was committed. Similarly we are of opinion that the conviction under sec. 353, I.P.C, cannot be supported, because the special Excise Sub-Inspector when assaulted was not acting in lawful discharge of his duty. [See in this connection In re the petition of Rakhmaji (1)] We observe that the Sessions Judge is of opinion that the Excise Officer was protected by sec. 99, I.P.C, and he cites two cases Bhaivoo Jivaji v. Mulji Doyal (2) and Queen Empress v. Dalip (3) in support of this view. But the facts of those cases are essentially different from the facts of the present case, and we do not think that the law laid down there is applicable here; or that sec. 99, I.P.C, can protect the Excise Officer when his conduct was altogether illegal. For the above reasons we set aside the conviction and sentences.
We might, however, hold that the petitioners are guilty of the offence of ordinary assault punishable under sec. 352, I.P.C, but we are not quite sure whether the resistance offered or the force used was not necessary to resist the Excise Officer in what he attempted to do, viz., to break open the door of the petitioner's house. But in any view of the matter, it seems to us that the incarceration which the petitioners have already suffered under the sentence imposed by the Magistrate is sufficient in the circumstances of the case, and that there need not therefore be any formal conviction for assault under section 352.
S.C.S
Rule made absolute.