Page 146 - ELT_1st June 2020_VOL 372_Part 5th

680 EXCISE LAW TIMES [ Vol. 372

whether it was undue or whether the same has been explained
or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an “empowered”
officer while effecting an arrest or search during normal inves-
tigation into offences purely under the provisions of CrPC
fails to strictly comply with the provisions ‘of Sections 100 and
165 of CrPC including the requirement to record reasons, such
failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section
41(2) of the Act carries out a search, he would be doing so un-
der the provisions of CrPC namely Sections 100 and 165 of
CrPC and if there is no strict compliance with the provisions
of CrPC then such search would not per se be illegal and
would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts
while appreciating the evidence in the facts and circumstances
of each case.
(5) On prior information the empowered officer or authorised of-
ficer while acting under Sections 41(2) or 42 should comply
with the provisions of Section 50 before the search of the per-
son is made and such person should be informed that if he so
requires, he shall be produced before a Gazetted Officer or a
Magistrate as provided thereunder.
It is obligatory on the part of such officer to inform the person
to be searched. Failure to inform the person to be searched and
if such person so requires, failure to take him to the Gazetted
Officer or the Magistrate, would amount to non-compliance of
Section 50 which is mandatory and thus it would affect the
prosecution case and vitiate the trial. After being so informed
whether such person opted for such a course or not would be
a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps
to be taken by the officers after making arrest or seizure under
Sections 41 to 44 are by themselves not mandatory. If there is
non-compliance or if there are lapses like delay etc. then the
same has to be examined to see whether any prejudice has
been caused to the accused and such failure will have a bear-
ing on the appreciation of evidence regarding arrest or seizure
as well as on merits of the case. ”
21. In Noor Aga (supra) relied upon by the Ld. Advocate for the peti-
tioner in paragraph 66, wherein the Hon’ble Apex Court observed as follows :-
“66. We may, at the outset, notice that a fundamental error has been
committed by the High Court in placing explicit reliance upon Section 108
of the Customs Act.
It refers to leading of evidence, production of document or any other thing
in an enquiry in connection with smuggling of goods. Every proceeding in
terms of sub-section (4) of Section 108 would be a judicial proceeding with-
in the meaning of Sections 193 and 228 of the Indian Penal Code. The en-
quiry contemplated under Section 108 is for the purpose of 1962 Act and

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