1. A Datsun car bearing registration No. KCD 3506 was stopped while it was being driven by the applicant Moviz Khan from the town of Hussain-abed (Gidu) to the city of the Hyderabad. The applicant Mohammad Hashim is said to be seated on the rear seat of the said car. On a seizure made by a team headed by Mr. Wafai Excise and Taxation Officer, Hyderabad, two bags of charas were secured, one each from the rear seat and the luggage boot of the said car in presence of mashirs Abdullah and Ahmed. The charas four d from the said car weighed two maunds. The bail plea of the applicants has been rejected by the two Courts below. The applicants have therefore filed application for bail in this Court.
2. I have heard Mr. Mohammad All Shaikh the learned counsel for the applicants and Mr. Ghulam Ali Memon the then Advocate-General, Sind for the State.
3. The learned counsel for the applicants firstly contended that the offence under section 43 (3), Sind Abkari Act, although punishable with seven years' imprisonment is bailable. He relied upon section 41 (b) of the said Act which lays down that any Abkari Officer empowered to investigate an offence punishable under this Act shall have power to grant bail in accordance with the provisions of the Code of Criminal Procedure to any person arrested without a warrant for an offence punishable under this Act. He urged that since the Abkari Officer was empowered to release a person arrested for any offence under the Act irrespective of the nature of the offence, it is reasonable to hold that all the offences under the Abkari Act are bailable. The learned Advocate-General replying to this contention submitted that section 41 (b) of the Abkari Act cannot be construed to mean that all the offences under the Abkari Act are bailable. Whether or not an offence was bailable or not bailable, he urged, reference will have to be made to Second Schedule to the Code of Criminal Procedure according to which this offence was not bailable.
4. The learned counsel for the applicants, then contended that the search conducted by the Investigating Officer was contrary to the provisions of section 103 of the Code of Criminal Procedure, inasmuch as the search was not made in presence of two or more respectable inhabitants of the locality. The learned Advocate-General urged that the provisions of section 103, Cr. P. C. Were not attracted in case of search made in this cabe. He submitted that section 103 of the Code applied when a search is to be made of a house. The learned counsel for the applicants lastly contended that the offence with which the applicants are charged is not punishable with death, imprisonment for life or for ten years and that the offence being punishable with seven years' imprisonment, the grant of bail in such cases is a rule, and refusal an exception. The learned Advocate-General submitted that all offences wherein punishment was for more than two years were non-bailable and that for the purpose of the bail each case bad to be decided on its o merits.
5. Since, on merits of this case, I am of the view, that this is a fit case for bail, I am not inclined to go deep into all these questions, although I am not inclined to agree with the learned counsel for the applicants; that it was obligatory upon the Investigating Officer to comply with the pro visions of section 103 of the Code in this case.
6. Section 103 of the Code of Criminal Procedure is obviously not attracted to the search made in this case. This section deals with search made of a place. The word 'place' is defined in Bellentine's Law Dictionary as a 'location' a 'public square', a 'highway'. a 'street', a 'structure' devoted to a particular use such as an arsenal or dockyard, a 'building' even a vessel moorred at a wharf, a 'locality', a 'situation' or a 'site'. In the instant case no place as contemplated by section 103 of the Code of Criminal Procedure was searched so as to make it incumbent upon the Investigating Officer to call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search. The allegation against the applicants is that the contraband charas was found in the rear seat and luggage boot of the car which was driven by one of them when the other occupied its rear seat. The provisions of section 103 apply only when search is made under Chapter VII of the Code of Criminal Procedure. These provisions do not apply to a case of apprehension of persons suspected to be carrying any intoxicant, hemp or any other thing liable to confiscation under the law. Section 103 would not therefore, be applicable to the seizure of contraband charas in any open place. In this case also a car was seized on a public road and search thereof made and contrabani charas seized there and then.
7. Section 38 of the Abkari Act lays down that all searches made under sections 36 and 37 of the said Act shall be made in accordance with the provisions of the Code of Criminal Procedure.
8. Section 36 empowers any Abkari Officer duly empowered in this behalf to enter at any time by day or by night, any building, vessel, vehicle or enclosed place in which he has reason to believe that any intoxicant liable to confiscation under this Act is manufactured, kept or concealed. It is quite clear that these things when searched are intended to be regarded as more or less for the time being fixtures. If they have no locale, it is impossible to get witnesses from the locality. Section 37 relates to the power of an Abkari Officer duly empowered in this behalf to seize in any open place or in transit any intoxicant, hemp, or any other thing which he has ream to believe to be liable to confiscation under this or any other law for the time being in force relating to Ahkari Revenue and detain and search any person whom he has reason to believe to be guilty of any offence against this or any other such law and if such person has any intoxicant, hemp or other thing in his possessions, arrest him. There can be no doubt that the contraband charas was seized in this case in an open place while in transit from the town of Hussainabad (Gidu) to the city of Hyderabad. No doubt section 38 of the Sind Abkari Act lays down that searches made under sections 36 and 37 of that Act shall be made in accordance with the provisions of the Code of Criminal Procedure but if a seizure is made in any open place and/or any intoxicant or any other thing liable to confiscation is seized while in transit under section 37 of the said Act, compliance with the provisions of section 103 of the Code is not obligatory. The provisions of sections 14, 15 and 16 of Opium Act, 1878 (Act I of 1878) are in all material particulars part materia with the provisions of sections 36, 37 and 38 of the Sind Abkari Act. Section 16 of Opium Act also lays down that searches under sections 14 and 15 of that Act shall be made in accordance with the provisions of the Code of Criminal Procedure. It was held in the case of Kali Kumar that if a search is made in an open place under section 15 of the Opium Act compliance with the provisions of section 103 of the Code is not obligatory. In 31 Cr. L J 303 it was held that seizure of opium in transit was not contemplated by section 16 of the Opium Act and need not be made in accordance with section 103 of the Code of Criminal Procedure. For it is quite manifest that when the article to be seized is on the move and has no locale, it may be impossible to get witnesses of the locality to witness its seizure.
9. So far as applicant Mohammad Hashim is concerned, he was merely sitting on the rear seat of the said car, on the floor of which one bag of contraband charas was allegedly lying. The other applicant is alleged to be driving the said car. It is not known at this stage to whom the car really B belonged. The evidence of seizure and recovery is to be assessed at the trial. In my opinion the question of their criminal liability requires further enquiry.
10. In view of the reasons stated hereinabove, the applicants Mohammad Hashim and Moviz Khan are released on bail in the sum of Rs. 10,000 each with one surety and P. R. In the like amount to the satisfaction of the Sessions Judge, Hyderabad. 28 Cr. L J 372